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TABLE  OF  CONTENTS 


Page 

CHAPTER       I. -COMMON  LAW            1 

CHAPTER       il.- MARRIAGE  SETTLEMENTS      ...  17 

CHAPTER     III. -PROMISES  TO  MARRY  AND  BREACH 

OF  PROMISE 50 

CHAPTER     IV.-MARRIAGE 63 

CHAPTER      V.-HUSBAND  AND  WIFE       ....  iOO 

CHAPTER    VI.— MARRIED  WOMEN 144 

CHAPTER    VII. -SEPARATE  PROPERTY  OF  MARRIED 

WOMEN 202 

CHAPTER  VIII.— COMMUNITY  PROPERTY          ...  253 

CHAPTER     IX.— DOWER 262 

CHAPTER      X.-CURTESY              293 

CHAPTER     XI.— SEPARATION  BY  AGREEMENT  298 

CHAPTER    XII.— DIVORCE              322 

CHAPTER  XIII.— ALIMONY 398 


PREFACE 

This  volume  is  dedicated  to  the  aggressively 
progressive  women  of  this  world,  in  the  hope  that 
it  may  prove  useful  as  ammunition  for  their  com- 
bat with  defiant  conventionality  and  obstinate  con- 
servatism. Knowledge  is  often  the  best  persuader. 
The  barriers  which  restrain  human  liberties  are  only 
vulnerable  to  the  vigor  born  of  knowledge.  Each 
thought  or  word,  that  prompts  the  activity  which 
assails,  may  own  its  share  in  the  final  victory,  and 
none  should  hold  back  contribution  for  fear  of  its 
proportionate  insignificance. 

The  most  important  result  of  the  better  civiliza- 
tion of  our  time  is  the  increased  knowledge  and 
power  of  women.  We  know  that  in  limited  spheres 
their  influence  was  always  incalculably  great;  but 
now,  without  losing  their  ascendancy  at  home,  they 
find  a  career  in  many  of  the  trades,  most  of  the 
professions,  and  all  the  arts.  In  those  of  the  arts 
which  give  the  most  lively  pleasure  and  reach  the 
greatest  number  of  persons,  namely  fiction,  and  the 
drama,  women,  in  our  day,  have  attained  the  first 
rank,  and  have  made  the  first  rank  higher. 

I  set  no  limit  to  their  future  achievements  ex- 
cept that  which  nature  herself  has  established.  So 
long  as  the  chief  business  of  every  state  w^as  to 
defend  ftself  against  armed  encroachment,  all  gifts 
and  all  character  were  of  necessity  subordinate  to 
masculine  force.  Women  were  "the  subject  sex." 
The  peace  and  safety  resulting  from  the  union  of 
many  states,  and  to  become  universal  through 
federation  and  arbitration,  will  still  further  reduce 

iii 


the  importance  of  muscle  and  brawn.  The  time  is 
not  far  distant  when  the  ballot  will  have  rendered 
the  bullet  not  monstrous  merely,  but  ridiculous. 

Women  have  risen  to  the  better  chance 
afforded  them  by  the  amelioration  of  manners.  The 
most  fortunate  of  them  have  been  cruelly  obstructed 
by  the  large  remainder  of  barbarism  which  exists  in 
every  community,  and  they  have  done  their  w^ork 
in  the  teeth  of  every  conceivable  disadvantage. 
They  have  had  to  snatch  it  from  a  cross-fire  of 
hostile  circumstances.  That  they  should  have  been 
able  to  exercise  their  rare  talents  at  all,  and  so 
triumphantly,  is  a  kind  of  miracle,  at  which  we  can 
but  stand  amazed. 

To  avoid  the  risk  of  any  possible  misconstruc- 
tion I  shall  offer  here  a  short  explanation  of  my 
locus  standi  as  regards  the  whole  subject  in  ques- 
tion. 

I  have  been  for  some  years  deeply  interested 
in  what  has  been  called  the  "Woman's  Movement" 
and  have  taken  part  in  pleading  for  the  higher  educa- 
tion of  women,  for  the  admission  of  women  to 
university  degrees,  for  the  protection  of  the  prop- 
erty of  married  women,  for  the  employment  of 
w^omen  generally. 

I  have  seen  every  year  more  reason  to  regard 
the  part  hereafter  to  be  played  by  women  in  public 
affairs  as  offering  the  best  hope  for  the  moral  and, 
still  more  emphatically,  for  the  spiritual  interests  of 
humanity.  I  think  more  highly  of  woman  since  I 
have  watched  and  noted  her  keenness  from  the 
public  platform;  and  1  have  more  confidence  than 
I  had  at  first,  both  in  her  ability  and  in  her  stability. 
But  it  would  be  idle  to  veil  the  fact  that  the  path  of 
progress  on  w^hich  w^omen  have  now  entered  leads 
up  a  steep  hill  of  difficulty.  Dangers  must  be  faced 
whenever  any  time-honored  evil  is  to  be  swept 
away  or  any  new  good  achieved.  The  rapid  pro- 
gress of  woman  in  public  life  and  affairs  could  not 

iv 


now^  be  stopped,  if  we  desired  it;  nor  should  we 
desire  to  stop  it,  if  it  were  our  option  to  do  so. 

I  have  yet  to  learn  that  knowledge  and  free- 
dom, which  are  the  springs  of  all  the  nobler  virtues 
in  men,  will  be  less  the  ground  of  loftier  and  purer 
virtues  in  women. 

Women  do  not  ask  favor  of  men,  but  justice. 

That  a  woman  should  really  possess  public 
spirit,  and  that  its  exercise  should  be  as  ennobling 
to  her  as  it  is  to  man,  is  a  lesson  which  it  takes 
most  men  half  a  lifetime  to  learn. 

It  is  not  then  to  men  that  women  must  look 
primarily  for  aid  to  climb  the  ascent  before  them. 
The  work  of  elevation  must  be  w^rought  by  them- 
selves or  not  at  all.  At  this  hour  there  are  in 
America  thousands  of  women  of  the  highest  social 
and  intellectual  rank  who  desire  to  see  better  days 
for  their  sex,  but  who  are  sitting,  sighing  and  wait- 
ing patiently  for  some  tall,  grand,  masculine  Jupiter 
to  descend  and  lift  their  chariot  out  of  the  ruts  of 
custom,  it  is  in  vain;  they  may  so  wait  forever. 
Nothing  but  their  own  steady  and  simultaneous 
labor  and  a  knowledge  of  the  laws  relating  to  their 
sex  can  really  elevate  them. 

This  book  is  offered  to  the  public,  not  as  a  legal 
treatise,  but  as  simply  an  attempt  to  state  intelli- 
gently, the  rights,  privileges,  and  disabilities  of 
women  under  the  law.  especially  so  far  as  they  are 
different  from  those  enjoyed  by  or  imposed  upon 
men.  Repetitions  are  intentionally  frequent.  Take 
this  offering  therefore  for  what  it  may  be  worth,  for 
its  good  wishes  if  nothing  more. 

ALVAH  L.  STINSON. 

Boston,  Massachusetts,  July  1,  1914. 


CHAPTER  I 
COMMON  LAW 

The  condition  of  woman  at  common  law  was 
little  better  than  that  of  a  slave.  A  wife  has  a  right 
to  share  the  bed  and  board  of  her  husband,  and 
can  call  upon  him  to  provide  her  with  necessary 
food  and  clothing,  but  she  is  bound  to  follow  him 
wherever,  in  the  country,  he  may  choose  to  go  and 
establish  himself,  provided  it  is  not,  for  other 
causes,  unreasonable.  She  is  under  obligation  to 
be  faithful  in  chastity  to  her  marriage  vow. 

A  married  woman  can  acquire  rights  of  a  polit- 
ical character,  which  stand  on  the  general  prin- 
ciples of  the  law  of  nations.  When  she  commits  a 
crime  in  the  presence  of  her  husband,  unless  it  is 
of  a  very  aggravated  character,  she  is  presumed  to 
act  by  his  coercion,  and,  unless  the  contrary  is 
proved,  she  is  irresponsible. 

Her  property  rights  were  put  by  the  marriage 
very  much  under  the  control  of  the  husband.  He 
could  manage  his  own  affairs  in  his  own  way,  buy 
and  sell  all  kinds  of  personal  property,  without  con- 
sulting her  and  without  her  control,  and  he  might 
buy  any  real  estate  he  might  deem  proper;  but,  as 
the  wife  acquired  a  right  in  the  latter,  he  could  not 
sell  it,  discharged  of  her  dower,  except  by  her  con- 
sent, expressed  in  the  manner  prescribed  by  the  laws 
of  the  State  where  such  lands  lay.  Her  personal 
property  in  possession  was  vested  in  him,  and  he 
could  dispose  of  it  as  if  he  had  acquired  it;  this  arose 
from  the  principle  that  they  were  considered  one 

1 


WOMAN  UNDER  THE  LAW 

person  in  law.  It  has  been  wittily  remarked  that  a 
husband  and  wife  are  one  and  the  husband  is  the 
one;  I  think,  however,  that  in  our  common  ex- 
perience many  husbands  regard  the  husband  and 
the  wife  as  two  and  the  husband  the  two.  At  com- 
mon law  the  husband  was  entitled  to  all  the  wife's 
property  in  action,  provided  he  reduced  it  to  pos- 
session during  her  life.  If  the  wife  died  before  the 
claims  were  collected,  the  husband  received  them  as 
her  administrator,  in  which  case,  after  payment  of 
her  debts,  the  surplus  belonged  to  him  absolutely. 
He  w^as  also  entitled  to  her  chattels  real,  but  these 
vested  in  him  not  absolutely,  but  sub  modo:  as,  in 
the  case  of  a  lease  for  years,  the  husband  was  en- 
titled to  receive  the  rents  and  profits  of  it,  and  could, 
if  he  pleased,  sell,  surrender,  or  dispose  of  it  during 
the  coverture,  and  it  was  liable  to  be  taken  in  execu- 
tion for  his  debts;  and,  if  he  survived  her,  it  was 
to  all  intents  and  purposes  his  ow^n.  In  case  his  wife 
survived  him,  it  was  considered  as  if  it  had  never 
been  transferred  from  her,  and  it  belonged  to  her 
alone.  In  his  wife's  freehold  estate  he  had  a  life 
estate  during  the  joint  lives  of  himself  and  wife; 
and  w^hen  he  had  a  child  by  her,  who  could  inherit, 
he  had  what  is  known  as  an  estate  by  the  curtesy. 
When  necessary  the  great  institution  known  as 
the  common  law  w^ould,  in  deference  and  fear  of  an 
occasional  outbreak  of  humane  public  opinion, 
afford  some  sort  of  equitable  protection  to  the  wife. 
When,  however,  it  w^as  only  possible  for  the  com- 
mon law  to  protect  but  one,  it  sedulously  spread  its 
protecting  wing  over  the  husband,  and  the  wife  was 
left  to  trail  as  best  she  could. 

At  common  law  a  married  woman  could  not 
bind  herself  by  contract,  express  or  implied,  by 
parol,  or  under  seal,  even  for  necessaries,  nor 
though  living  apart  from  her  husband,   could  she 


COMMON  LAW 

make  a  binding  contract-except  for  necessaries  for 
the  benefit  of  her  separate  estate;  and  a  contract 
made  by  her  being  invalid  would  be  no  considera- 
tion for  a  subsequent  promise  during  widowhood. 
If  her  husband  neglected  or  refused  to  furnish  sus- 
tenance" for  her  and  their  children,  therefore  she 
was  deprived  of  the  right  to  procure  it  by  pledging 
her  credit  which  might  be  good;  the  most  she  could 
do  was  to  pledge,  if  possible,  her  husband's  credit, 
which  might  be  bad,  and  thereby  preclude  her  from 
procuring  necessaries  of  w^hich  she  might  be  in  dire 
need.  Her  husband  might  be  bound  by  her  acts  as 
his  agent,  duly  authorized;  but  where  payment  to 
her  was  completed,  her  authority  must  be  stated. 
By  her  own  act  her  authority  could  not  be  enlarged; 
and  she  could  not  execute  a  conveyance,  even  in 
release  of  dower,  otherwise  than  by  joining  with 
her  husband  in  a  deed  to  a  third  person.  No  promise 
of  a  wife  could  at  common  law  be  enforced  against 
her  unless  she  had  a  separate  estate,  and  then  not 
by  a  personal  decree  but  only  by  treating  it  as  an 
appurtenant  out  of  said  estate;  and  then  only  for 
her  or  its  benefit. 

The  common  law  disabilities  of  a  married 
woman  could  not  be  avoided  by  any  false  represen- 
tations with  respect  to  her  capacity,  and  no  estoppel 
would  be  raised  thereby ;  but  in  the  management  of 
her  separate  property  she  w^ould  be  answerable  for 
the  fraud  of  her  agent,  within  the  scope  of  his 
agency,  though  she  were  ignorant  of  it.  The  dis- 
abilities of  a  married  woman  are  her  personal  privi- 
lege, and  in  an  action  this  must  be  specially  pleaded; 
and  no  one  but  the  husband  can  object  to  a  suit 
against  him  by  the  wife,  so  that  a  judgment  against 
a  firm  of  which  he  is  a  member  is  good  if  he  does 
not  himself  raise  the  defence.  That  is  to  say,  the 
common  lawjn  its  gr?.cious  goodness  and  gallantry 


WOMAN  UNDER  THE  LAW 

toward  woman,  permits  her  to  sue  even  her  hus- 
band, provided,  how^ever,  he  does  not  object.  The 
wife  must  continually  bear  in  mind  that  she  and  her 
husband  are  regarded  as  one  person,  and  that  her 
legal  existence  is  suspended  during  marriage,  or  in 
other  words,  is  merged  in  that  of  the  husband. 

In  equity,  however,  this  common  law  principle 
has  been  somewhat  modified;  and  for  some  pur- 
poses courts  of  equity  recognize  husband  and  wife 
as  distinct  persons.  She  may,  therefore,  bring  an 
action  at  law  against  her  husband,  and  upon  present- 
ing her  case  find  that  she  has  no  standing  in  court, 
for  she  and  her  husband  are  one  and  one  cannot 
maintain  legal  action  against  one's  self;  she  may, 
simultaneously,  however,  bring  an  action  against  her 
husband  in  equity,  file  her  papers  in  the  same  court, 
present  her  case  to  the  same  judge,  and  she  will  be 
heard ;  for  in  the  latter  case  she  and  her  husband  are 
separate  and  distinct  individuals,  as  viewed  by 
courts  of  equity.  Thus,  the  numerical  condition  of 
woman  is,  and  ever  w^as,  anomalous  at  common 
law.  If  husband  and  wife  are  one  and  they  are 
separated  by  a  decree  of  nullity  or  divorce,  which  is 
then  the  one?  and,  as  one  from  one  leaves  nothing, 
which  is  entitled  to  the  characterization  of  zero? 

At  common  law  the  wife  is  incapable,  except  in 
a  few  special  cases,  of  contracting  a  personal  obliga- 
tion, even  w^ith  her  husband's  consent;  and  any 
attempt  to  do  so  is  not  simply  voidable,  but  is  ab- 
solutely void.  Her  disabilities  in  this  respect  by 
reason  of  her  coverture  cannot  be  overcome  by  any 
form  of  acknowledgment  or  mode  of  execution,  or 
by  uniting  with  her  husband  in  the  contract;  and 
where  a  special  or  limited  power  of  making  con- 
tracts is  given  to  a  married  woman  she  is  still  con- 
sidered as  prima  facie  unable  to  contract  at  all,  and 
the  burden  of  proof  is  on  the  person  relying  on  the 

4 


COMMON  LAW 

validity  of  her  contract  to  bring  it  within  a  statutory- 
rule. . 

"^  At  common  law,  as  a  general  rule,  a  married 
woman  cannot  ratify  hetppst-nuptial  contracts  dur- 
ing coverture,  or  after  its  termination,  except  on  a 
new  consideration.  The  moral  obligation  resting  on 
a  woman  to  make  good  her  unenforceable  promise 
given  during  coverture  is  not  a  sufficient  considera- 
tion to  uphold  the  affirmation  of  the  promise  made 
either  subsequently,  during  coverture,  after  the  re- 
moval of  her  disability  by  statute  or  otherwise,  or 
after  she  becomes  discovert. 

At  common  law,  as  a  general  rule,  a  feme 
covert  could  not  dispose  of  her  personalty  by  w^ill, 
except  under  a  marriage  settlement  or  by  her  hus- 
band's consent,  or  make  a  valid  devise  of  lands  with 
dV  without  her  husband's  consent,  to  any  person 
whatever. 

As  a  general  rule,  at  common  law,  a  feme 
covert  could  neither  sue  nor  be  sued  alone,  but  she 
must  sue  or  be  sued  in  connection  with  her  husband. 

There  was  never  any  impediment  to  the  acqui- 
sition of  property  through  purchase  or  otherwise, 
by  a  married  woman,  arising  from  disability  im- 
posed by  coverture,  the  only  difficulty  in  the  way 
being  of  trifling  consequence  (?)  namely,  that  at 
common  law  the  ownership  passed  irhmediately  to 
the  husband;  and  while  at  common  law  a  married 
woman  is  capable  of  purchasing,  yet  the  husband 
may  disagree  and  thereby  void  the  purchase. 

At  common  law  a  married  woman  is  incapable 
of  exercising  the  right  of  suffrage,  her  existence  for 
such  a  purpose  being  merged  in  that  of  her  husband. 

At  common  law  a  married  woman  is  incapable 
of  entering  into  a  contract  and  hence  at  common 
law  for  this  reason  alone  she  cannot  be  estopped  by 
contract  or  anything  in  the  nature  of  a  contract. 

5 


WOMAN  UNDER  THE  LAW 

At  common  law  if  the  husband  is  an  aHen, 
and  has  never  been  in  the  realm  where  the  w^ife 
resides,  she  may  enter  into  contracts  to  sue  and  be 
sued  as  a  feme  sole.  Hence,  a  premium  is  placed 
upon  the  marriage  of  women  to  foreigners  by  the 
common  law,  for  by  so  marrying  there  is  no  merger 
or  fiction  of  two  in  one  and  her  legal  status  is  the 
same  as  before  the  marriage. 

A  w^ife  whose  husband  has  been  banished  or 
transported  for  life  as  a  convict,  may  make  a  will, 
contract,  and  in  everything  act  as  a  feme  sole  just 
as  if  her  husband  w^ere  dead,  he  being  regarded  in 
such  case  as  civilly  dead.  It  is  not  difficult  under 
this  rule  to  conceive  of  many  cases  v^here  the  com- 
mon law  might  serve  as  a  tremendous  incentive  to 
wanton  indifference  on  the  part  of  property  ow^ning 
and  oppressed  wives  as  to  their  husband's  welfare 
with  reference  to  banishment,  transportation  and 
'  civil  death. 

As  we  have  seen,  the  mere  fact  that  the  hus- 
band has  deserted  the  wife  without  leaving  her  the 
means  of  support,  or  that  they  are  living  apart, 
whether  she  is  provided  with  a  separate  main- 
tenance or  not,  will  not  be  sufficient  at  common  law 
'y  to  enable  the  w^ife  to  contract,  or  to  sue  and  be  sued, 
or  otherwise  act  as  a  feme  sole. 

It  is  a  well  established  principle  of  the  com- 
mon law  that,  if  the  husband  abandons  his  wife  and 
abjures  the  realm,  she  may  henceforth  act  as  a  feme 
sole.  Under  this  rule,  why  worry  if  as  the  shades  of 
evening  fall,  the  husband  fails  to  appear  at  the 
threshold  of  his  domicile,  at  the  accustomed  hour? 

It  has  been  held  that  the  facts  that  the  husband 
is  insane  and  is  living  apart  from  the  wife  in  an 
almshouse,  will  not  confer  upon  the  wife  any  power 
to  bind  herself  by  contract.  On  the  other  hand,  it 
has  been  held  that  a  wife  whose  husband  is  insane 

6 


COMMON   LAW 

and  is  confined  in  an  asylum  outside  the  State  in 
which  she  resides,  is  thereby  empowered  to  sue  in 
her  own  name  for  a  p>ersonal  injury,  as  though  her 
husband  were  civilly  dead.  Under  this  rule,  w^omen 
should  be  careful  to  have  their  insane  husbands  con- 
fined without  the  jurisdiction  of  the  State  of  their 
domiciles. 

At  common  law  the  husband  is  said  to  be  the 
head  of  the  family,  and  as  such  the  wife  must  love, 
honor  and  obey  him.  Yet  it  is  difficult  to  under- 
stand how  this  would  be  possible,  with  the  husband 
one  of  the  so  called  "fathers"  of  the  common  law, 
excepting  upon  the  principle  of  licking  the  hand 
which  beats  one. 

At  common  law  the  husband  has,  as  a  general 
rule,  a  right  to  the  custody  of  his  wife,  whose  ac- 
tions he  may  control  and  restrain,  even  by  the  use 
of  a  rod,  provided  it  be  no  thicker  than  his  thumb. 
Under  this  rule  it  would  seem  appropriate  for  pros- 
p>ective  brides  to  seriously  consider  the  thumb 
dimensions  as  well  as  other  sterling  and  manly 
qualities  of  their  intended  husbands. 

Under  the  common  law  an  unmarried  female 
was  under  the  restraint  of  her  parents,  a  married 
one,  under  the  restraint  of  her  husband;  in  fact,  it 
seems  that  woman  at  common  law  was  ever  and 
anon  under  the  control  and  at  the  mercy  of  man. 
Her  suckling  babe  might  be  torn  from  her  breast  by 
her  husband,  even  though  at  the  time  he  was  living 
apart  from  her  and  in  adultery  with  another  woman, 
so  great  a  favorite  was  woman  under  the  common 
law  of  England. 

At  common  law  it  was  not  a  criminal  offence 

to  leave  a  wife  without  the  means  of  support,  and, 

if  so  left  she  obtained  work  and  by  sacrifice,  denial 

and  suffering  succeeded  in  saving  a  few  dollars  and 

deposited  them  in  a  Savings  Bank,  they  became  the 

7 


WOMAN  UNDER  THE  LAW 

property  of  the  husband.  Even  the  ring,  with 
which  he  adorned  her  dainty  and  helpless  finger  at 
the  nuptials,  became  his  property  as  soon  as  the 
marriage  ceremony  was  fully  performed,  and  might 
be  taken  for  his  debts  by  his  creditors. 

At  common  law  the  personal  property  which 
the  wife  has  in  her  possession  in  her  own  right  at 
the  time  of  her  marriage,  or  which  comes  into  her 
possession  during  the  coverture,  whether  by  gift, 
bequest,  or  otherwise,  vests  absolutely  and  imme- 
diately in  the  husband  without  any  act  on  his  part 
asserting  his  marital  rights,  and  he  may  dispose  of  it 
as  he  pleases;  it  becomes  immediately  liable  for  his 
debts,  and  on  his  death  it  goes  to  his  personal  repre- 
sentatives. 

The  husband  has  the  right  to  dispose  of  the 
body  of  his  deceased  wife  by  sepulchre  in  a  suitable 
place.  He  has  control  of  the  body  and  may  select  the 
proper  place  for  the  interment,  regardless  of  the 
wishes  of  his  wife's  parents  or  their  relatives.  And 
this  carries  with  it  the  right  of  placing  over  the  spot 
of  burial  a  monument  or  memorial  of  such  style  and 
form  as  he  may  desire. 

At  common  law  the  husband  upon  marriage 
becomes  possessed  in  the  right  of  the  wife  to  her 
chattels  real,  and  he  may  forfeit,  sell,  assign,  mort- 
gage, or  otherwise  dispose  of  them  as  he  pleases, 
without  her  consent  by  any  act  in  his  lifetime,  and 
they  are  liable  to  be  sold  for  his  debts.  Upon  her 
death  they  vest  absolutely  in  him  if  he  survives,  and 
his  rights  in  these  respects  apply  to  equitable  as 
well  as  to  legal  terms  for  years. 

As  a  general  rule,  the  wife's  choses  in  action 
which  belonged  to  her  at  the  time  of  her  marriage, 
or  which  she  acquires  during  coverture,  belong,  at 
common  law,  to  the  husband. 

At  common  law  the  husband  is  entitled  not 

8 


COMMON  LAW 

only  to  all  the  personal  property  which  the  wife 
owns  at  the  time  of  1ier  marriage,  but  which  is  re- 
duced to  possession  during  coverture,  but  also  to 
her  services,  and  whatever  she  acquires  by  her  skill 
or  labor  during  coverture  belongs  to  him,  as  we 
have  seen.  The  husband's  right  in  this  respect  is 
absolute.  If  the  wife  makes,  in  her  own  name,  a 
purchase  of  her  own,  it  enures  to  the  husband  s 
ben^t  and  is  liable  for  his  debts,  and  if  her  earnings 
are  paid  to  her  without  the  authority  and  against 
ttie  direction  of  the  husband,  he  may,  nevertheless, 
recover  them.  Money  due  for  the  wife's  services 
ira  chose  in  action,  which,  as  a  general  rule,  does 
not  require  reduction  into  possession  for  the  pur- 
pose of  defeating  the  wife's  right. 

*"'  Even  in  equity  the  wife's  earnings  do  not  be- 
come her  property  without  a  clear,  express,  irre- 
vocable gift,  or  some  distinct  act  of  the  husband 
divesting  himself  of  them,  or  setting  them  apart  to 
her  separate  use. 

The  wife  has  no  interest  in  the  husband's  realty 
except  dower. 

""^nfnlurisdictions  where,  by  the  common  law,  the 
wife  is  entitled  to  a  distinctive  share  in  the  husband  s 
personalty,  it  is  conceded  that  the  husband  has  the 
power  to  dispose  absolutely  of  his  personalty  dur- 
ing his  lifetime  by  sale  or  gift,  and  if  he  reserves  no 
right  to  himself,  the  transfer  will  prevail  against  the 
wife,  though  made  to  defeat  her  claim. 

"Pin  money"  so  called  is  an  allowance  made  to 
the  wife  by  the  husband  in  his  great  mercy,  aided 
by  the  Court,  for  personal  dress,  decoration,  and 
ornament;  this  allowance  being  intended  for  the 
adornment  of  the  wife  and  not  for  accumulation, 
the  acceptance  from  the  husband  of  clothes  and 
other  necessaries,  will  be  a  bar  to  any  arrears  of  pin 
money  during  such    time    as    she    is    so    provided. 

9 


WOMAN  UNDER  THE  LAW 

Sometimes  the  allowance  is  made  out  of  the  wife's 
profits  and  savings  from  her  housekeeping.  Some- 
times the  husband  makes  an  arrangement  for  pin 
money  by  marriage  settlement. 

It  is  a  well  established  doctrine  of  the  common 
law  that  husband  and  wife  cannot  make  a  valid  con- 
tract with  each  other  during  coverture.  The  reason 
for  the  doctrine  generally  assigned  is  that  the  wife 
having  lost  her  legal  entity,  she  and  her  husband 
are  one  person  in  legal  contemplation  and  it  would 
be  absurd  for  a  person  to  enter  into  a  contract  with 
himself. 

At  common  law  the  wife  had  no  power  to  ap- 
point a  third  person  to  act  in  her  stead,  and  hence 
it  is  said  she  could  not  authorize  her  husband  to 
become  her  agent,  but,  even  if  she  had  been  given 
the  power  to  appoint  a  third  person  to  act  in  her 
stead,  it  is  difficult  to  understand  how  she  could 
have  authorized  her  husband  to  so  act,  because  he 
would  not  be  a  third  person,  under  the  rule  making 
husband  and  wife  one  person. 

At  common  law  the  wife  cannot  maintain  a 
civil  action  to  recover  damages  against  the  husband 
for  personal  injuries,  as,  for  instance,  assault  and 
battery,  false  representation  or  slander,  committed 
upon  her  during  coverture,  or  even  after  the  dis- 
solution of  marriage  by  divorce;  nor,  it  has  been 
held,  could  she  maintain  such  action  against  one 
who  acts  with  her  husband,  and  under  his  direction, 
in  doing  the  injury. 

At  common  law  it  is  the  duty  of  the  husband  to 
support  the  wife,  and,  if  he  refuses  or  neglects  to 
supply  his  wife  with  what  is  necessary,  she  may 
procure  it,  as  we  have  seen,  for  herself  on  his  ac- 
count and  at  his  charge,  provided  he  has  any  cre- 
dit; otherwise  she  must  go  w^ithout. 

Necessaries,  under  the  above  rule,  consist  of 


COMMON  LAW 


food,  drink,  clothing,  washing,  medical  attendance, 
and  a  suitable  place  of  residence,  it  has  been  held, 
however,  that  the  services  of  a  clairvoyant,  or  of 
persons  in  mesmeric  dreams,  were  not  necessaries. 
Those  were  regarded  as  "fancy  articles." 

In  England  the  wife  has  the  same  power  of 
pledging  her  husband's  credit  for  the  costs  due  to 
her  solicitor  in  a  suit  for  a  dissolution  of  a  marriage 
as  the  costs  in  a  suit  for  divorce.  But  legal  services 
rendered  to  a  wife  are  not  by  great  weight  of  author- 
ity in  the  United  States  recognized  at  common  law 
as  coming  within  the  list  of  articles  known  as  neces- 
saries, for  the  obvious  reason  that  necessaries  are 
to  be  provided  by  a  husband  for  his  wife  to  sustain 
her  as  his  wife  and  not  to  provide  for  her  future 
condition  as  a  single  woman,  or,  .perhaps,  as  the 
proud  and  happy  wife  of  another. 

At  common  law  the  person  of  a  married 
woman  during  coverture  could  be  taken  in  execu- 
tion upon  a  joint  judgment  against  her  and  her 
husband  for  her  ante-nuptial  debts  whether  tha 
husband  was  or  was  not  arrested. 

Her  common  law  disability  is  not  removed  by 
the  so-called  married  woman's  acts  which  operate 
only  to  give  her  such  capacity  as  is  expressed  in 
them. 

The  rigor  of  the  common  law  disability  of  a 
married  woman,  and  the  merging  of  her  individual 
and  property  rights  in  her  husband,  gave  rise  to  cer- 
tain equitable  remedies  against  her  husband,  in- 
tended, to  secure  at  least  a  portion  of  her  property 
to  the  use  of  herself  and  her  children;  but  to  the 
ordinary  equitable  estate  of  a  married  woman,  the 
marital  rights  of  the  husband  attach. 

The  common  law  has  been  called  a  great  insti- 
tutkon,  and,  no  doubt,  it  does  embody  the  thought 
and  wisdom  of  many  great  minds;  but  has  it  been 

11 


WOMAN  UNDER  THE  LAW 

fair  to  women?  In  this  connection  it  may  be  in- 
teresting to  learn  something  of  what  is  meant  by 
the  term  "common  law.  " 

It  is  considered  to  be  that  system  of  law  or  form 
of  the  science  of  jurisprudence  which  has  prevailed 
in  England  and  in  the  United  States  of  America,  in 
contradistinction  to  other  great  systems,  such  as  the 
Roman  or  Civil  law, — or,  those  principles,  usages 
and  rules  of  action  applicable  to  the  government 
and  security  of  persons  and  property,  which  do  not 
rest  for  their  authority  upon  any  express  or  positive 
declaration  of  the  will  of  the  legislature, — or,  the 
body  of  rules  and  remedies  administered  by  courts 
of  law,  technically  so-called,  in  contradistinction  to 
those  of  equity  and  to  the  canon  law.  Generally, 
the  law  of  any  country,  to  denote  that  which  is 
common  to  the  whole  country,  in  contradistinction 
to  laws  and  customs  of  local  application. 

Under  the  common  law  neither  the  stiff  rule  of 
a  long  antiquity,  on  the  one  hand,  nor,  on  the  other, 
the  constant  changes  of  a  present  arbitrary  power 
are  allowed  ascendency,  but,  under  the  sanction  of  a 
constitutional  government,  each  of  these  is  set  off 
against  the  other.  So  that  the  law  of  the  people,  as 
it  is  gathered  both  from  long  established  custom 
and  from  the  expression  of  the  legislative  power, 
gradually  forms  a  system,  supposed  to  be  just,  be- 
cause it  is  the  deliberate  will  of  a  free  people,  except- 
ing those  who  are  not  permitted  to  express  their 
wills ;  supposed  to  be  stable,  because  it  is  the  growth 
of  centuries;  progressive  because  it  is  amen^^le  to 
the  Qonstant  revision  of  such  of  the  peopje^sjiavg^^ 
right  to  expression  concerning  it. 

A  full  idea  of  the  genius  as  well  as  the  pecu- 
liarities of  the  common  law  cannot  be  gathered 
without  a  survey  of  the  philosophy  of  English  and 
American  history.     Perhaps  the  most  important  of 

12 


COMMON  LAW 

the  narrower  senses  in  which  the  phrase  "common 
law"  is  used,  is  that  which  it  has  when  used  in  con- 
tradistinction to  statute  law,  to  designate  unw^rit- 
ten  as  distinguished  from  written  law.  It  has  been 
called  the  law  which  derives  its  force  and  authority 
from  the  universal  consent  and  immemorial  prac- 
tice of  the  people.  Of  course,  it  derives  no  power 
whatever  from  those  who  are  not  permitted  to  ex- 
press their  consent.  It  has  never  received  the  sanc- 
tion of  the  legislature  by  an  express  act,  which  is 
the  criterion  by  which  it  is  distinguished  from  the 
statute  law. 

The  statutes  are  the  expression  of  a  law  in 
a  w^ritten  form,  which  form  is  essential  to  the 
statute.  The  decision  of  a  court  which  establishes 
or  declares  a  rule  of  law  may  be  reduced  to  writing 
and  published  in  the  Reports;  but  this  report  is  not 
the  law;  it  is  but  evidence  of  the  law;  it  is  but  a 
written  account  of  one  application  of  a  legal  prin- 
ciple, which  principle,  in  the  theory  of  the  common 
law,  is  still  unwritten.  However  artificial  this  dis- 
tinction may  appear,  it  is,  nevertheless,  of  the  ut- 
most importance,  and  bears  continually  the  most 
wholesome  results.  It  is  only  by  the  legislative 
power  that  law  can  be  bound  by  phraseology  and 
by  forms  of  expression.  The  common  law  eludes 
such  bondage;  its  principles  are  not  limited  nor 
hampered  by  the  mere  forms  in  which  they  may 
have  been  expressed,  and  the  reported  adjudications 
declaring  such  principles  are  but  the  instances  in 
which  they  have  been  applied.  The  principles  them- 
selves are  still  unwritten,  and  should  be  ready  with 
all  the  adaptability  of  truth  to  meet  every  new  and 
unexpected  case. 

It  is  said  that  the  rules  of  the  common  law  are 
flexible,  but  we  frequently  find  Judges  stating  what 

13 


WOMAN  UNDER  THE  LAW 

the  law  is  instead  of  what  it  ought  to  be,  as  if  it 
were  as  inflexible  as  a  rod  of  iron. 

The  statute  or  w^ritten  law  is  naturally  in- 
flexible and  has  no  self-contained  power  of  adapta- 
tion to  cases  not  foreseen  by  legislators;  so  that  in 
course  of  time  they  became  supplemented,  ex- 
pleuned,  enlarged,  or  limited  by  a  series  of  adjudica- 
tions; until,  at  last,  it  may  appear  to  be  merely  the 
foundation  of  a  larger  super-structure  of  unwritten 
law^.  It  naturally  follows,  too,  from  the  less  definite 
and  precise  forms  in  which  the  doctrine  of  the  un- 
written law  stands,  and  from  the  proper  hesitation 
of  courts  to  modify  recognized  doctrines  in  new 
exigencies,  that  the  legislative  power  frequently 
intervenes  to  declare,  to  qualify,  or  to  abrogate  the 
doctrines  of  the  common  law.  Thus,  the  written 
and  the  unwritten  law,  the  statutes  of  the  present 
and  the  traditions  of  the  unholy  past  interlace  and 
react  upon  each  other.  Historical  evidence  sup- 
ports the  view  which  these  facts  suggest — that 
many  of  the  doctrines  of  the  common  law  are  but 
the  common  law  form  of  antique  statutes,  long 
since  overgrown  and  imbedded  in  judicial  decisions. 
While  this  process  is  doubtless  continually  going  on 
and  to  a  very  considerable  extent,  particularly  in  the 
United  States,  the  doctrines  of  the  common  law  are 
being  reduced  to  the  statutory  form,  w^ith  such 
modifications,  of  course,  as  the  legislature  may 
choose  to  make. 

In  a  still  narrower  sense,  the  expression  "com- 
mon law"  is  used  to  distinguish  the  body  of  rules 
and  of  remedies  administered  by  courts  of  law^  tech- 
nically so  called  in  contradistinction  to  those  of 
equity  administered  by  courts  of  chancery,  and  to 
the  canon  law,  administered  by  the  ecclesiastical 
courts.  In  this  country  the  common  law^  of  England 
has  been  adopted  as  the  basis  of  our  jurisprudence 

14 


COMMON  LAW 

in  all  the  states  except  Louisiana.  Perhaps  this  is 
because  Louisiana  is,  or  has  been  called,  the 
"female"  state,  and  has  a  decent  regard  for  her  sex. 

The  common  law  of  England  is  not  in  all 
respects  to  be  taken  as  that  of  the  United  States  or 
of  the  several  states.  Its  general  principles  are 
adopted  only  so  far  as  they  are  applicable  to  our 
situation,  and  the  principles  upon  which  Courts  dis- 
criminate between  what  is  to  be  taken  and  what  is 
to  be  left  have  been  much  the  same,  whether  the 
common  law  was  adopted  by  constitution,  statute 
or  decision.  It  cannot  be  overlooked  that  notwith- 
standing the  broad  language  of  the  Constitution 
there  were  many  particulars  of  the  common  law  of 
England  as  it  stood  prior  to  1  776,  which  never  have, 
in  fact,  been  regarded  by  our  courts  as  in  force  in 
this  country. 

In  criminal  law  the  common  law  is  generally 
in  force  in  the  United  States  to  some  extent,  and, 
while  it  is  in  some  states  held  that  no  crime  is 
punishable  unless  made  so  by  statute,  there  are, 
in  many  states,  general  statutes  resorting  to  the 
common  law  for  all  crimes  not  otherwise  enumer- 
ated, and  for  criminal  matters  generally.  When 
there  is  no  statutory  definition  of  a  crime  named, 
the  common  law  definition  is  generally  resorted  to; 
as  atsTTare  its  rules  of  evidence  in  criminal  cases  for 
all  practice  as  well  as  principles  in  the  absence  of 
statutes  to  the  contrary.  And  in  Louisiana,  although 
not  recognized  in  civil  matters,  the  common  law  in 
criminal  cases  is  expressly  adopted.  It  has  been 
held  to  prevail  in  the  District  of  Columbia  as  to 
theft,  in  Maryland  as  to  conspiracy,  in' New  Hamp- 
shire as  to  kidnapping,  and  in  Maine  as  to  homicide 
with  intent  to  kill. 

15 


WOMEN  UNDER  THE  LAW 


There  is  no  common  law  of  the  United  States 
as  a  distinct  sovereignty,  and,  therefore,  there  are 
no  common  law  offences  against  the  United  States. 


16 


/^^ 


(^> 


CHAPTER  II 
MARRIAGE  SETTLEMENTS 

A  woman  and  man  may  make  valid  contracts 
with  each  other  in  contemplation  of  marriage.  Such 
contracts  are  not  uncommon  and  it  is  of  great  im- 
portance that  every  woman,  intending  to  enter 
marriage,  should  have  something  more  than  a  vague 
idea  concerning  them. 

These  contracts  are  known  in  the  law  as  ante- 
nuptial agreements,  or  marriage  settlements,  and 
relate,  almost  exclusively,  to  the  respective  property 
rights  of  the  parties. 

Ante-nuptial  contracts  are  frequently  made  m 
cases  where  there  are  children  by  a  former  marriage 
which  the  father  is  desirous  of  protecting  by  making 
some  legal  provision  for  them  respecting  his  prop- 
erty. 

Property  may  be  settled  upon  the  prospective 
bride  even  though  the  husband  is  in  debt  at  the 
time;  and  the  personal  property  of  the  wife,  con- 
sisting of  her  patrimonial  fortune  in  the  hands  of 
her  guardian  whilst  it  remains  separate,  capable  of 
being  identified  and  distinguished,  which  has  not 
been  reduced  to  possession  by  the  husband  and 
which  could  not  be  reached  by  his  creditors  by  any 
direct  process  of  attachment,  may.  by  the  joint  act 
of  husband  and  wife,  be  settled  and  secured  to  the 
wife  and  her  children,  and  such  an  assignment  can- 
not be  set  aside  as  fraudulent  against  creditors. 

The  validity  of  a  marriage    entered    into    in 
regular  form,  however,   is  unaffected  by  the  pre- 

17 


WOMAN  UNDER  THE  LAW 

liminary  agreement  of  the  parties  not  to  live  to- 
gether. It  is  against  the  policy  of  the  law  that  the 
validity  of  the  contract  of  marriage  or  its  effect  upon 
the  status  of  the  parties  should  be  in  any  way 
affected  by  their  ante-nuptial  or  collateral  agree- 
ments. An  ante-nuptial  agreement,  therefore, 
never  to  live  together  as  husband  and  wife,  is  held 
to  be  a  mere  nullity  so  far  as  the  marriage  contract 
is  concerned.  These  contracts  are  not  resorted  to 
as  frequently  as  a  means  for  protecting  the  wife  as 
they  were  prior  to  the  legislation  whereby  her  rights 
were  enlarged,  but  every  woman  about  to  enter 
upon  the  marriage  state  should  inform  herself  as  to 
her  rights  and  liabilities  thereunder. 

It  must  be  borne  in  mind  that  they  may  be  used 
to  protect  the  rights  of  the  man  as  well  as  those  of 
the  woman. 

The  validity  of  such  settlements  may  be  espe- 
cially affected  by  the  form  of  the  settlement,  the 
execution  and  recording  thereof,  the  capacity  of  the 
parties  thereto,  the  consideration  upon  which  it  is 
made,  and  the  fairness  of  the  transaction;  which 
matters  will  now^  be  discussed. 

A  marriage  contract  need  not  contain  tech- 
nical words;  it  need  only  appear  that  there  was  a 
final  enforceable  promise  in  regard  to  marriage 
rights  in,  to  or  over  property,  or  in  consideration  of 
marriage.  But  a  marriage  settlement  is  subject  to 
the  operation  and  effect  of  all  general  laws  as  to 
the  recording  of  instruments  affecting  rights  in  real 
estate  or  personalty,  and  there  are  generally  special 
statutes  besides,  w^hich  must  be  complied  w^ith. 

In  some  states  statutes  require  marriage  con- 
tracts to  be  witnessed,  acknowledged,  recorded,  ac- 
companied w^ith  a  schedule,  etc.  In  general,  the 
noncompliance  w^ith  such  statutes  renders  a  mar- 
riage contract  void  as  to  creditors  only;   between 

18 


MARRIAGE    SETTLEMENTS 

the  parties  it  is  valid  although  unrecorded,  and 
as  to  creditors,  it  is  valid  if  they  have  actual  notice. 
Acknowledgement,  when  required,  cannot  be  made 
after  marriage.  If  execution  be  proved,  delivery 
will  be  presumed. 

The  English  Statute  of  Frauds,  providing  that 
no  agreement  in  consideration  of  marriage  shall  be 
enforced  unless  in  writing,  and  similar  statutes,  are 
in  force  in  many  states.  Under  such  statutes 
if  the  consideration  be  other  than  marriage,  the 
statute  does  not  apply.  A  note  or  memorandum  of 
the  contract,  as  by  means  of  letters,  etc,  if  it  con- 
tains the  terms  of  the  contract,  the  consideration, 
as  well  as  the  promise,  is  sufficient  a  writing,  and 
binds  the  parties;  though,  if  made  after  the  mar- 
riage, not  intervening  creditors.  The  contract  need 
be  signed  only  by  the  party  to  be  charged.  If  the 
contract  is  wholly  performed,  the  statute  does  not 
apply;  as,  if  A,  having  orally  promised  to  give  B 
certain  slaves  when  B  married  C,  gives  him  the 
slaves,  B  can  hold  them  against  As  executor.  So 
if  it  has  been  performed  by  the  party  seeking  to 
charge  (not  if  only  by  the  party  sought  to  be 
charged)  ;  as,  where  A  and  B  about  to  marry  agree 
orally  that  A  shall  have  B's  notes  and  bonds,  ab- 
solutely, if  he  pays  her  a  certain  allowance  during 
her  life;  after  her  death  her  administrators  cannot 
claim  such  notes,  etc.,  on  the  ground  that  the  con- 
tract was  not  in  writing.  But  marriage  itself  is  not 
part  performance.  If  the  statute  is  not  pleaded,  the 
court  will  decree  performance  of  a  marriage  con- 
tract, though  oral. 

The  capacity  of  the  parties,  with  certain  ex- 
ceptions as  to  age,  is  that  required  for  the  execution 
of  any  other  contract. 

Statutes  sometimes  enable  infants  to  make 
valid    marriage    contracts    to    bar    dower.      In    the 

19 


WOMAN  UNDER  THE  LAW 

absence  of  such  a  statute,  the  marriage  contract  of 
an  infant  is  binding  on  the  other  party  (if  adult)  ; 
but  voidable  by  the  infant  on  attaining  full  age,  or 
within  a  reasonable  time  thereafter,  or  by  the  in- 
fant's successors  in  estate,  or  privies  in  blood.  If 
not  beneficial,  it  is  absolutely  void.  Where  the 
husband  took  her  personalty  absolutely  by  mar- 
riage, the  w^ife's  contract  as  to  her  personalty  has 
been  held  valid.  Infancy  can  be  objected  to  only 
by  the  parties  themselves.  An  infant  may  make  a 
valid  marriage  contract  through  her  guardian. 

The  consideration  of  such  a  contract  may  be 
any  valuable  consideration,  reciprocal  stipulations, 
or  the  marriage  itself. 

Marriage  is  a  consideration  of  the  highest 
value,  and  any  contract  or  promise  which  brings 
about,  or  helps  to  bring  about,  a  marriage  is  bind- 
ing when  the  marriage  has  taken  place,  although 
it  be  invalid,  and  even  when  it  does  not  take  place 
owing  to  the  settlors  death;  against  the  settlor  and 
those  claiming  under  him,  in  favor  of  the  husband 
and  wife,  their  issue,  the  issue  of  a  former  marriage, 
collaterals,  and  even  strangers;  against  the  settlor's 
creditors,  in  favor  of  the  husband  and  wife  and  their 
issue,  although  such  issue  were  born  before  the  mar- 
riage, but  not  collaterals,  etc.  Although  an  existing 
marriage  is  no  consideration,  a  contract  in  consid- 
eration of  a  marriage  made  after  the  marriage,  in 
pursuance  of  and  conforming  with  an  agreement 
made  before,  is  as  valid  against  the  settlor  as  if  made 
before;  but  is  valid  against  intervening  creditors 
only  if  the  agreement  made  before  w^ere  enforce- 
able. When  another  consideration  is  expressed  in 
the  contract,  marriage  cannot  be  shown  to  have 
been  the  consideration;  and  where  marriage  is  the 
consideration,  the  failure  of  the  wife's  fortune  can- 
not be  alleged  as  a  failure  of  consideration. 

20 


MARRIAGE    SETTLEMENTS 

As  between  the  parties,  any  concealment  by 
one  party  as  to  the  value  of  his  or  her  property  will 
render  a  marriage  contract  relating  thereto  voidable. 
Persons  about  to  marry  do  not,  like  buyer  and  seller, 
deal  at  arms'  length,  but  stand  in  a  confidential  rela- 
tion requiring  the  exercise  of  the  greatest  good  faith. 
If  the  provision  secured  to  the  wife  is  manifestly 
unreasonable  and  disproportionate  to  the  means  of 
the  intended  husband,  it  raises  a  presumption  of 
intended  concealment,  and  throws  on  him  the  bur- 
den of  disproving  the  presumption. 

As  against  creditors,  if  both  parties  intend,  or 
if  the  settlor  intends  and  the  settlee  has  notice  of 
such  intent  to  hinder,  delay  or  defraud  his  creditors, 
the  contract,  to  the  extent  at  least  of  the  settlor's 
debts,  is  void,  no  matter  what  the  consideration; 
but  not  if  the  settlee  has  no  such  intent  or  notice; 
and  mere  knowledge  of  the  settlor's  indebtedness 
or  insolvency  will  not  amount  to  fraudulent  intent 
or  notice,  though  they  may  go  to  prove  it,  just  as 
the  unreasonableness  of  the  settlement  may.  A 
provision  by  which  the  settlor  retains  the  property 
until  his  insolvency  is  void. 

If  marriage  precipitates  insolvency,  it  is  all 
wrong;  if  insolvency  precipitates  marriage  it  is  all 
right. 

A  marriage  contract  is  not  merged  or  destroyed 
by  the  marriage  of  the  parties.  If  executed,  it  will 
be  upheld,  in  equity,  and,  after  the  dissolution  of 
the  marriage,  at  law;  if  executory,  it  may  be  specif- 
ically enforced  during  marriage,  in  equity,  or  sued 
upon  after  the  dissolution  of  marriage,  at  law.  If 
it  carries  out  the  intentions  of  the  parties  it  cannot 
be  modified  or  set  aside  unless  all  the  parties  in- 
terested consent,  or  are  brought  before  the  court; 
if  it  does  not  carry  out  such  intentions,  it  may  be  re- 
formed in  equity.     If  lost  or  destroyed,  equity  will 

21 


WOMAN  UNDER  THE  LAW 

revive  it,  so,  if  countermanded  fraudulently  by  the 
husband  before  marriage,  its  execution  will  be  de- 
creed. A  party  does  not  lose  his  rights  upon  it  by 
misconduct,  or  by  failure  to  perform  his  part,  or  by 
divorce  alone;  but  he  may  by  long  acquiescence. 
The  issue,  when  interested,  have  a  right  to  have  it 
enforced. 

In  construing  marriage  contracts  the  true  in- 
tent of  the  parties  will  be  carried  out  liberally, 
without  regard  to  the  strictly  technical  meanings 
of  words  used;  when  possible,  issue  will  be  included 
in  the  benefits  of  the  contract,  and  as  issue,  chil- 
dren of  a  former  or  subsequent  marriage,  but  not 
grandchildren.  Statutes  requiring  the  recording  of 
such  contracts  will  be  strictly  construed,  and  only 
in  general  for  the  protection  of  creditors. 

A  marriage  contract,  if  valid  where  made,  is 
valid  everywhere,  unless  prohibited  in  the  place 
where  it  is  sought  to  be  enforced.  So  that  when 
such  a  contract  is  valid  in  matter  and  in  form  (re- 
corded, etc.,  if  necessary)  by  the  law  of  the  place 
where  it  is  made,  its  validity  is  not  affected  by  the 
subsequent  removal  of  the  parties  w^ith  the  property 
into  a  State  where  it  is  not  in  form;  but  it  may  be 
invalid  if  in  such  place  it  is  unlawful  per  se. 

A  marriage  contract  invalid  per  se  where  made 
is  invalid  everywhere,  but  if  invalid  because  want- 
ing in  form  where  made,  but  valid  where  it  is  sought 
to  be  enforced,  it  may  in  the  latter  place  be  enforced. 

A  marriage  contract  as  to  its  effect  is  governed 
by  the  law  of  the  place  where  it  is  made,  unless  it  is 
made  by  the  parties  with  the  intention  of  having  it 
performed  elsewhere;  in  which  case  it  is  governed 
by  the  law^  of  the  place  where  it  is  to  be  performed. 

A  marriage  contract  to  convey  or  charge  real 
estate  must  be  valid  in  matter  and  form  by  the  law 
of  the  place  where  the  land  lies. 

22 


MARRIAGE    SETTLEMENTS 

The  term  post-nuptial  settlement  used  in  this 
article  includes  all  transfers  of  property,  direct  or 
indirect,  between  husband  and  wife,  as  well  as  all 
settlements  made  on  them  by  third  parties,  such  as 
have  already  been  discussed.      Transfers  between 
husband   and   wife  may  depend   for   their  validity 
upon;    (1)    the   capacity  of  husband  and   wife   to 
contract    together    (see   chapter   on    Husband   and 
Wife);     (2)   the  form  of  the  settlement;     (3)   the 
consideration;    (4)   the  absence  of  fraud  or  duress 
between  the  parties;    (5)   the  absence  of  fraud  on 
the  rights  of  creditors.      Such    transfers    may    be 
wholly  or  partially  valid   or  invalid.      Thus,   post- 
nuptial settlements  are  usually  valid  between   the 
parties;  one  may  be  binding  on  the  settlor,  his  heirs 
and   representatives,   and   his   voluntary  assignees, 
but  invalid  as  against  his  creditors;  valid  as  to  some 
(subsequent)    creditors;    but  invalid    as    to    other 
(existing)  creditors;  valid  as  to  part  of  the  property 
settled,  but  invalid  as  to  the  rest;  invalid  as  an  ab- 
solute grant,  but  valid  as  a  security.      Whether  a 
settlement  is,  when  it  is  valid  between  the  parties, 
but  otherwise  invalid,  void,   or  voidable,  does  not 
seem  to  be  clearly  determined.     Though  "void"  is 
usually  the  word  used,  the  better  opinion  seems  to 
be  that  it  is  voidable  only.     For,  a  bona  fide  pur- 
chaser for  value  from  a  settlee  whose  title  is  invalid 
against  creditors,  gets  a  valid  title  even  against  such 
creditors,  which  could  not  be  the  case  if  the  original 
settlement  was  absolutely  void  against  them;   and 
this  is  true  of  both  realty  and  personalty;  so  prop- 
erty previously  conveyed  in  fraud  of  creditors  does 
not  pass  by  a  deed  from  the  settlor  for  the  benefit  of 
such  creditors;  so,  only  a  creditor  can  allege  the  in- 
validity of  the  settlement.      The  reason  the  word 
void"  is  so  often  used  is  that  in  the  great  mass  of 
cases  no  special  proceeding  need  be  resorted  to  to 

23 


WOMAN  UNDER  THE  LAW 

have  a  settlement  declared  void,  but  the  question 
of  validity  may  be  determined  in  any  proceeding  at 
law  or  in  equity  to  which  both  the  settlor  and  settlee 
or  their  respective  successors  are  parties. 

There  is  no  particular  form  necessary,  nor  are 
technical  words  required,  in  drawing  post-nuptial 
settlements,  except  where  statutes  apply.  Some  of 
the  different  forms  which  transfers  are  likely  to 
take  are  discussed  later  in  this  chapter. 

In  some  states  all  transfers  of  property  be- 
tween husband  and  wife  must  be  recorded,  or  rati- 
fied by  a  court;  in  others,  a  wife  must  file  a  state- 
ment of  all  her  separate  property  of  which  her  hus- 
band has  possession;  and  generally  a  married 
woman  cannot  release  her  marriage  rights  except  by 
w^riting  or  deed.  But  acts  requiring  record  of  mar- 
riage settlements  apply  only  to  those  in  considera- 
tion of  marriage,  not  to  post-nuptial  settlements. 
Otherwise  the  formalities  are  the  same  as  in  trans- 
fers between  strangers. 

A  consideration  is  necessary  to  render  an  ex- 
ecutory contract  enforceable,  whether  at  law  or  in 
equity,  and  to  render  an  executed  settlement  valid 
as  against  creditors;  but  voluntary  settlements  or 
executed  gifts  are  binding  between  the  parties.  A 
voluntary  settlement  is  one  without  consideration. 
Love  and  affection  is  a  meritorious  consideration ;  it 
serves  often  to  explain  a  grantor's  purpose  and  to 
disprove  a  fraudulent  intent;  it  is  a  good  considera- 
tion as  against  the  grantor  and  his  representatives; 
but  it  is  not  a  valuable  consideration,  it  w^ill  not  sus- 
tain an  executory  contract  at  all,  or  a  settlement  in 
prejudice  of  the  rights  of  creditors.  Existing  mar- 
riage is  a  consideration  of  the  same  kind;  as  is  a 
husband's  desire  to  make  provision  for  the  support 
he  owed  his  w^ife. 

24 


MARRIAGE    SETTLEMENTS 

Each  of  the  following  is  a  valuable  considera- 
tion: a  release  of  dower,  or  homestead,  previous 
settlement,  or  separate  property  rights;  an  ante- 
nuptial enforceable  promise  to  make  a  settlement; 
an  existing  debt  though  barred  by  limitations;  a 
wife's  equity  of  settlement;  use  of  property  with  un- 
derstanding that  it  should  be  replaced;  cash  received 
as  a  loan;  rents  collected  as  agent;  wife's  right  of 
survivorship  in  mortgage  to  her.  It  is  a  valuable 
consideration  for  a  settlement  that  a  court  of  equity 
would  have  compelled  its  execution.  If  husband 
and  wife,  each  of  them  having  interests,  no  matter 
how  much,  or  of  what  degree,  or  of  what  quality, 
come  to  an  agreement  which  is  afterwards  em- 
bodied in  a  settlement,  it  is  a  bargain  and  a  transac- 
tion on  valuable  consideration. 

Elach  of  the  following  is  a  mere  nominal  con- 
sideration, really  no  consideration  at  all.  The  wife's 
property  which  by  law  is  the  husband's;  dower 
previously  voluntarily  released;  property  previous- 
ly voluntarily  given  up;  cohabitation,  when  this  is 
a  duty;  the  wife's  services  when  these  belong  to 
her  husband. 

As  a  general  rule,  if  a  consideration  is  real 
(valuable),  its  adequacy  is  not  enquired  into.  But 
inadequacy  of  consideration  is  evidence  of  fraud. 
And,  as  against  creditors,  the  consideration  for  a 
settlement  must  be  fair  and  reasonable;  the  payment 
of  a  trivial  sum,  or  such  disproportionate  considera- 
tion as  two  hundred  and  seventy  dollars,  for  prop- 
erty worth  two  thousand  dollars,  or  four  hundred 
dollars  for  property  worth  eighteen  hundred  dollars, 
will  not  defeat  creditors'  rights;  as  to  them  the 
settlement  is  voluntary  to  the  extent  of  the  excess; 
and  though,  if  the  settlee  has  acted  in  good  faith, 
he  or  she  will  be  protected  as  a  creditor,  and  the 

25 


WOMAN  UNDER  THE  LAW 

settlement  treated  as  a  security  for  the  actual  con- 
sideration. 

In  the  case  of  bad  faith  he  or  she  will  not  be 
protected  at  all. 

Formerly  a  married  woman  w^as  deemed  en- 
tirely under  her  husband's  control,  and  incapable  of 
voluntary  acts  in  his  presence,  and  even  now  her 
torts  and  crimes  committed  in  his  presence  are  pre- 
sumed committed  under  his  coercion.  So  in  the 
case  of  contracts.  These  at  common  law^  were  void, 
and  good  in  equity  only  if  proved  to  have  been  fairly 
and  freely  made.  But  now,  although  the  greatest 
good  faith  is  required  in  dealings  betv/een  husband 
and  wife,  which  are  treated  much  as  dealings  be- 
tween trustee  and  cestui  que  trust  are,  and  in  case 
of  a  gift  by  her  to  him,  or  an  inadequate  considera- 
tion, or  an  advantage  secured  by  him,  the  burden 
of  proof  is  on  him  to  show  that  the  transaction  was 
freely  and  deliberately  concluded;  the  mere  fact  that 
he  is  her  husband  does  not  render  it  a  fraud  for  him 
to  take  property  from  her ;  but  she  must  prove  fraud 
or  undue  influence,  and  allowance  will  be  made  for 
their  intimate  relation.  The  husband's  fraud  or 
duress  will  not  affect  the  validity  of  a  wife's  transfer 
in  the  hands  of  a  bona  fide  purchaser  for  value;  she 
cannot  have  her  deed  to  a  third  party  set  aside  on  ac- 
count of  her  husband's  conduct,  unless  they  were 
confederates,  or  the  husband  acted  as  such  third 
party's  agent  in  obtaining  the  deed.  In  spite  of 
fraud,  equity  will  sustain  a  settlement  between  hus- 
band and  wife  if  for  the  benefit  of  them  both. 
Generally,  courts  of  equity  alone  will  afford  them 
relief. 

Husband  and  wife  are  one,  and  it  is  a  great 
temptation  for  a  husband  to  place  property  in  his 
wife's  name  in  order  to  secure  himself.  Innumer- 
able cases  have  therefore  arisen  where  the  creditors 

26 


MARRIAGE    SETTLEMENTS 

of  a  husband  have  attached  transfers  to  his  wife 
and  sought  to  have  them  declared  void,  and  the 
principles  applicable  to  such  cases  are  quite  well  de- 
fined. A  transfer  by  which  the  grantor  hinders, 
delays  or  defrauds  his  creditors  is  called  a  "fraudu- 
lent conveyance."  Such  conveyances  are  of  two 
kinds,  those  which  are  made  with  the  intent  to 
evade  creditors,  where  there  is  fraud  in  fact,  and 
those  where  there  is  no  such  intent,  but  which  being 
voluntary,  prejudice  creditors*  rights,  where  there 
is  fraud  in  law^.  The  usual  rules  as  to  fraudulent 
conveyances  apply  generally  to  conveyances  be- 
tween husband  and  wife.  But  the  subject  is  too 
vast  to  be  minutely  treated  herein. 

Statutes  Protecting  Creditors. — The  statutes 
relating  to  this  subject  which  are  constantly  referred 
to,  which  are  merely  declaratory  of  the  common  law, 
which,  as  a  part  of  the  common  law^,  are  in  force  in 
many  states,  and  which  form  the  basis  of  most 
modern  statutes  against  fraudulent  conveyances, 
are:  13  Eliz.,  ch.  5,  and  27  Eliz.,  ch.  4.  Statute  13 
Eliz.,  ch.  5,  provides  that  all  transfers  made  to  the 
end,  purpose,  and  intent  to  del"ay,  hinder  or  defraud 
creditors  and  others  of  their  lawful  rights  are  "ut- 
terly void  *  as  against  such  creditors  and  others;  but 
does  not  affect  bona  fide  transfers  for  value.  Statute 
27  Eliz.,  ch.  4,  provides  that  all  transfers  made  for 
the  intent  and  purpose  of  defrauding  subsequent 
purchasers  are  "utterly  void"  as  against  such  sub- 
sequent purchasers;  but  does  not  affect  bona  fide 
transfers  for  value.  These  statutes  are  construed 
liberally,  and  alike  at  law^  and  in  equity;  but  while 
at  common  law  fraudulent  intent  was  a  mere  ques- 
tion of  fact,  under  these  statutes  it  became  in  part  a 
question  of  law.  The  general  statutes  on  the  sub- 
ject in  the  several  states  are  given  the  same  effect 
as  these    statutes  in  spite  of  somewhat    different 

27 


WOMAN  UNDER  THE  LAW 

wording;  but  the  modern  system  of  public  records 
has  greatly  diminished  the  importance  of  Statute 
27  Eliz.,  ch.  4.  There  are,  moreover,  such  statutes 
as  that  in  Maryland,  which  provide  that  no  acquisi- 
tion of  property  by  wife  from  husband  shall  be 
valid  if  made  in  prejudice  of  the  rights  of  his  credit- 
ors, and  these  seem  to  add  nothing  to  the  common 
law.  Bankruptcy  acts  may  also  affect  such  convey- 
ances, for  a  conveyance  by  a  husband  to  his  wife  of 
all  his  property  is  an  act  of  bankruptcy;  and  other 
collateral  statutes  may  protect  creditors. 

Elxisting  Creditors. — If  a  debtor  transfers  his 
property  for  adequate  valuable  consideration,  his 
creditors  cannot  complain  unless  his  actual  inten- 
tion in  making  the  transfer  was  to  defeat  or  preju- 
dice their  rights,  and  was  shared  in  by  his  grantee. 
Still,  in  the  absence  of  statute,  a  mere  preference  of 
a  bona  fide  creditor  is  lawful,  irrespective  of  intent, 
and  even  though  the  debtor  divests  himself  of  all 
his  property.  But  where  the  transfer  is  voluntary, 
the  law  raises,  in  favor  of  existing  creditors,  a  pre- 
sumption of  fraudulent  intent,  which  in  some  old 
cases,  and  even  now  in  some  states,  is,  irrespective 
of  the  amounts  of  indebtedness,  of  the  debtors 
means,  and  of  the  property  transferred,  conclusive; 
but  which,  by  the  great  weight  of  authority,  may  be 
rebutted  by  showing  the  purity  of  the  grantor's  in- 
tent and  the  reasonableness  of  the  provision.  The 
rule  as  stated  by  the  Supreme  Court  of  the  United 
States  reads:  "The  ancient  rule  that  a  voluntary 
post-nuptial  settlement  can  be  avoided  if  there  was 
some  indebtedness  existing  has  been  relaxed,  and  the 
rule  generally  adopted  in  this  country  at  the  present 
time  (1873)  will  uphold  it  if  it  be  reasonable,  not 
disproportionate  to  the  husband's  means,  and  clear 
of  any  intent,  actual  or  constructive,  to  defraud 
creditors";  and  this  rule  is  generally  adopted,  even 

28 


MARRIAGE    SETTLEMENTS 

where  a  statute  expressly  provides  that  a  transfer 
from  husband  to  wife  "in  prejudice  of  the  rights  of 
subsisting  creditors"  shall  be  invalid.  A  husband's 
love  and  affection  for  his  wife,  and  a  desire  to  secure 
her  support,  is  ample  reason  for  a  gift  to  her;  still 
his  actual  intention  is  a  mere  question  of  fact;  but 
whether  the  gift  is  a  reasonable  one  considering  his 
circumstances  seems  to  be  a  question  of  law.  It  is 
reasonable  if  his  debts  are  trifling,  or  if  he  retains 
enough  to  readily  pay  them  all;  but  unreasonable  if 
his  debts  are  so  great  as  to  embarrass  him,  or  if  he  is 
insolvent,  or  if  the  gift  leaves  him  insolvent,  or  if  he 
denudes  himself  of  all  his  property,  or  if  the  prop- 
erty he  conveys  is  easily  accessible  to  creditors, 
while  that  which  he  retains,  though  ample  in 
amount,  is  inaccessible  to  them. 

Subsequent  Creditors. — A  settlement  is  valid 
as  against  those  who  become  creditors  after  it  is 
made,  unless  there  is  an  actual  intent  to  defraud 
them;  and  if  the  settlement  is  on  valuable  consid- 
eration, unless  the  intent  is  shared  in  by  the 
grantee.  Transferring  property  with  the  intention 
of  thus  withdrawing  it  from  the  operation  of  debts 
about  to  be  assumed  is  fraud  in  fact,  and  the  transfer 
of  all  one's  property  is  strong  evidence  of  such 
fraud.  A  subsequent  creditor  cannot  attack  a 
settlement  on  the  ground  that  it  defrauds  existing 
creditors;  but  if  a  settlement  is  set  aside  by  existing 
creditors,  subsequent  creditors  may  come  in  pari 
passu  with  them. 

Property  Exempt. — Any  property  of  a  hus- 
band, personal  or  real,  which  his  creditors  could  not 
proceed  against,  he  may,  as  against  them,  settle 
upon  his  wife.  Thus,  there  is  no  fraud,  in  law  or 
in  fact,  in  a  conveyance  by  him  to  her  of  the  home- 
stead; or  of  her  earnings,  or  cattle  if  they  are  ex- 
empt; or  of  her  choses  in  action,  which  are  not  his 

29 


WOMAN  UNDER  THE  LAW 

till  reduced  to  possession,  and  which  his  creditors 
cannot  compel  him  to  so  reduce. 

Fraudulent  possession  is  discussed  in  the 
chapter  on  Husband  and  Wife. 

The  remedies  for  enforcing  a  postnuptial  settle- 
ment depend  largely  upon  the  modes  of  procedure 
in  the  different  states.  As  between  husband  and 
wife  there  are  some  special  disabilities  which  have 
been  discussed  under  title  Husband  and  Wife. 
Usually  such  settlements  are  enforced  in  equity. 
There  the  wife  may  have  it  specifically  performed, 
or  rectified;  and  where  she  and  her  husband  have 
conveyed  her  property  in  trust  for  her  sole  and 
separate  use,  she  may  after  his  death  have  it  con- 
veyed back  to  her ;  so  when  he  has  bought  property 
in  his  name  with  her  money,  she  may  compel  him  to 
convey  to  her.  But  the  grantor  cannot  revoke  a 
settlement  or  have  it  set  aside,  except  for  fraud. 
No  one  not  a  party  or  creditor  has  any  remedies  at 
all. 

As  to  Creditors. — Courts  of  law  and  equity 
have  concurrent  jurisdiction  over  fraudulent  con- 
veyances; a  creditor  may  treat  the  settlement  as 
voidable,  and  apply  to  equity  to  have  it  set  aside, 
or  as  void  and  attach  personalty,  or  having  bought 
the  realty  sue  in  ejectment.  But  if  the  grantor  has 
never  held  the  legal  title,  as  where  a  husband  has 
made  a  purchase  and  taken  the  deed  in  his  w^ife's 
name,  the  creditor  must  proceed  in  equity;  so  in 
the  case  of  bona  fide  valuable,  but  inadequate,  con- 
sideration. 

Deeds  of  settlement  between  husband  and 
wife,  especially  in  the  case  of  separation,  are  com- 
mon, and  though  it  is  usual  to  make  them  through 
the  intervention  of  trustees,  this  is  not  necessary, 
but  where  a  trustee  is  needed  the  husband  is  treated 
as  such.     Such  deeds  are  always  good  in  equity  if 

30 


MARRIAGE    SETTLEMENTS 

equitable.  To  exclude  the  husband's  marital  rights 
in  real  estate  the  deed  should  contain  express  words, 
but  every  gift  of  personalty  from  husband  to  wife 
is  presumed  to  be  for  her  sole  and  separate  use.  In 
other  respects  such  deeds  are  like  deeds  betw^een 
strangers;  for  example,  they  may  be  delivered  in 
escrow,  and  they  are  binding  on  the  parties  by  estop- 
pel. All  the  property  rights  of  the  parties  are  often 
settled  by  deed. 

Gifts  of  personalty  between  husband  and  wife 
are  usually  good  in  equity  if  not  at  law;  but  as  they 
are  transfers  of  property  without  consideration, 
they  are  invalid  as  against  creditors,  w^hose  rights 
they  prejudice.  Gifts  causa  mortis  differ  from  gifts 
inter  vivos  only  in  that  the  former  are  revoked  if 
the  donor  does  not  die  as  expected,  and  are  there- 
fore not  separately  discussed.  The  two  essentials 
of  a  gift  are,  (  I  )  the  donor's  intent  to  vest  the  title 
in  the  donee;  (2)  the  execution  of  such  intent  by 
actual  or  constructive  delivery.  If  a  gift  is  good 
only  in  equity,  it  must  be  fair,  reasonable,  not  ex- 
travagant; in  fine,  equitable.  But  once  executed  a 
gift  is  irrevocable;  except  under  the  civil  or  Spanish 
law, 

(a)  The  donor's  intention  to  vest  the  title 
in  the  donee  must  be  clearly  proved,  and  is  a  mere 
question  of  fact,  as  in  the  case  of  gifts  between 
strangers.  But  special  presumptions  arise  from  the 
relation  of  the  parties.  Thus,  if  a  husband  buys 
property  in  his  w^ife's  name,  a  gift  thereof  to  her  is 
prima  facie  presumed;  so  if  he  takes  a  promissory 
note  for  a  debt  due  him  payable  to  her,  or  puts  stock 
in  her  name,  or  deposits  money  to  her  credit;  so  if 
a  note  is  taken  payable  to  him  and  her,  though  he 
may  dispose  of  it  during  his  life,  and  perhaps  by 
will,  she  takes  it  as  survivor.  Still,  these  presump- 
tions may  always  be  rebutted  and  the  real  intent 

31 


WOMAN  UNDER  THE  LAW 

shown.  On  the  other  hand,  when  a  w^if  e  consents  to 
her  husband's  expending  her  money,  a  gift  of  it  to 
him  is  presumed,  unless  she  shows  that  their  intent 
was  different;  for  example,  that  he  received  it  as 
her  agent,  or  as  a  loan.  So  a  gift  is  presumed  if  by 
her  consent  he  changes  her  realty  into  personalty, 
where  personalty  is  by  law  his;  but  the  mere  pos- 
session and  user  of  her  chattels  by  him  is  of  itself 
no  evidence  of  a  gift  from  her  to  him. 

(b)      Delivery  Must  be  Clearly  Proved. — A 

mere  declaration,  as,  "I  give  you  this  property," 
without  delivery  is  merely  an  inchoate  gift,  and  is 
treated  as  a  promise  to  make  a  gift — a  promise 
which  not  even  courts  of  equity  enforce.  The  same 
is  true  though  the  declaration  be  in  w^riting,  but  not 
if  the  writing  be  under  seal,  by  virtue  of  the  prin- 
ciple of  estoppel.  Declarations  are  usually  evidence 
only  of  intent;  delivery  must  be  proved  by  facts 
showing  actual,  constructive,  or  symbolic  change 
of  possession.  When,  however,  a  husband  pur- 
chases property  for  his  w^ife  as  a  gift,  delivery  to 
him  is  delivery  to  her,  and  subsequent  possession 
by  him  is  her  possession.  So  that,  when  a  husband 
bought  a  horse  for  his  wife,  the  gift  w^as  upheld, 
though  he  kept  the  horse  in  his  stable.  But  it  might 
have  been  otherw^ise  had  he  first  bought  it  for  him- 
self and  then  given  it  to  her,  as  when  he  gave  her  a 
wagon,  but  retained  possession  thereof  and  used 
it  as  before.  Except  in  the  case  of  personal  orna- 
ments and  apparel,  it  is  very  difficult  to  prove  actual 
delivery  between  husband  and  wife  who  are  living 
together;  as,  for  example,  delivery  of  household 
furniture,  and  especially  so  when  the  question  of 
fraud  against  creditors  arises.  And  it  may  be  said 
that  the  only  safe  delivery  is  by  instrument  under 
seal  as  between  the  parties,  and  by  recorded  instru- 
ment as  against  creditors.     Delivery  by  order  is  not 

32 


MARRIAGE   SETTLEMENTS 

perfected  until  the  order  is  accepted  or  executed; 
until  such  time  it  may  be  revoked  and  is  revoked  by 
the  donor's  death. 

Delivery  is  not  perfect  unless  accepted  by  the 
donee. 

A  deposit  by  a  husband  of  his  own  money  in 
the  names  of  himself  and  wife  is  not  in  itself  a  gift 
to  her,  and  if  it  is  simply  payable  to  her  she  is  a 
mere  agent  to  draw  it,  and  her  agency  ceases  on  his 
death.  If  the  deposit  is  made  in  her  name  alone, 
its  effect  depends  on  the  circumstances  of  the  case; 
prima  facie,  except  where  the  community  system 
prevails,  it  is  a  gift  to  her,  good  against  his  heirs, 
though  not  against  his  creditors;  but  it  may  be 
shown  that  it  was  not  a  gift  to  her,  as  where  it  was 
entrusted  to  her  for  the  support  of  the  family.  Of 
course  as  between  her  and  the  bank  she  may  draw  it, 
if  the  deposit  is  in  her  sole  name.  So  if  she  deposits 
his  money  with  his  consent  in  her  name,  the  deposit 
is  deemed  a  gift  to  her.  But  a  gift  by  a  husband  to 
his  wife  of  a  deposit  in  his  name,  must  be  perfected 
by  delivery.  A  check  alone  is  not  delivery,  and  if 
he  dies  before  his  wife  draws  the  money  or  has  the 
check  accepted,  the  gift  does  not  take  effect. 

Some  difficult  questions  sometimes  arise  where 
the  property  of  a  husband  and  a  wife  has  been  so 
mingled  as  to  be  beyond  identification,  but  these 
questions  will  be  found  soluble  upon  principles 
already  discussed.  If  an  ascertainable  sum  of  a 
wife's  money  is  mingled  by  her  husband  with  his 
own  without  her  consent,  or  upon  no  understand- 
ing that  it  shall  be  returned,  she  is  to  the  extent  of 
such  sum  her  husband's  cestui  que  trust  or  creditor; 
but  her  consent  alone  to  such  a  course  is  merely 
evidence  of  a  waiver  of  her  rights  and  of  a  gift  to 
him.  If,  however,  the  amount  of  money  so  mingled 
is  not  ascertainable,  she  cannot  recover  from  him 

33 


WOMAN  UNDER  THE  LAW 

or  his  estate.     In  many  cases  a  married  "woman  must 
keep  her  separate  property  separate. 

When  a  wife's  services  belong  to  her  husband 
he  may  abandon  all  rights  to  her  future  earnings. 
If  by  statute  a  wife's  "separate"  earnings  are  hers, 
she  has  thereby  no  interest  in  money  earned  jointly 
with  her  husband;  and  usually  w^hen  husband  and 
w^ife  are  in  business  together  without  any  special 
understanding,  it  is  presumed  that  the  wife  intended 
to  give  her  services  to  her  husband.  A  husband 
may  give  his  wife  his  own  services,  whether  he  does 
so  or  not  raising  many  questions. 

(a)  General  Rule. — A  husband  may,  as  his 
wife's  agent,  manage  her  separate  property  or  sep- 
arate business  w^ith  or  w^ithout  compensation;  but 
neither  he  nor  any  creditor  of  his  has,  in  the  absence 
of  special  agreement,  any  right  in  the  property  man- 
aged, earned  or  accumulated  through  his  agency. 
Partnerships  betw^een  husband  and  wife  are  not  in- 
cluded w^ithin  this  discussion. 

(b)  Express  Contract. — Contracts  between 
husband  and  wife  are  in  most  states  void,  and  there- 
fore there  is  usually  no  express  contract  by  a  wrife 
to  pay  her  husband  for  his  services.  In  cases  w^hen 
such  contract  can  and  does  exist,  she  may  even  be 
made  his  garnishee ;  but  in  the  absence  of  such  con- 
tract neither  he  nor  any  creditor  of  his  has  any  right 
against  her  or  her  property. 

(c)  Implied  Contract. — There  is  no  implied 
contract  that  a  wife  will  pay  her  husband  for  his  ser- 
vices. His  first  duty  is  to  support  her  and  his  fam- 
ily, and  in  helping  her  to  make  her  property  produc- 
tive he  is  but  discharging  this  duty,  and  is  presum- 
edly amply  compensated  with  the  home  and  support 
she  allows  him.  Moreover,  as  one's  talents  and 
capacity  to  labor  are  not  property,  and  as  therefore 
no  debtor  can  be  made  to  work  for  his  creditors,  a 

34 


MARRIAGE    SETTLEMENTS 

husband  who  is  entitled  to  his  wife's  services  may 
give  them  to  her  even  against  his  creditors,  and  may 
likewise  give  her  his  own  labor,  but  not  his  accumu- 
lations. 

(d)  Apparent  or  Pretended  Agency. — A 
husband  may  thus,  as  his  wife's  agent,  manage  her 
property  or  business  without  acquiring  any  rights 
in  said  property  or  business,  or  subjecting  it  to  the 
claims  of  his  creditors.  But  while  apparently  her 
agent  and  pretending  to  act  in  that  capacity  he  may 
be  conducting  a  business  of  his  own  under  her  name 
simply  for  the  purpose  of  evading  his  creditors,  or 
he  may  be  using  her  property  as  a  gift  to  him,  or  as 
a  loan;  in  such  cases  the  business  is  his  and  the 
remedies  of  his  creditors  against  the  assets  thereof 
are  full.  So  when  she  has  no  pow^er  by  statute  to 
trade,  but  with  his  consent  is  in  a  business  which 
he  conducts,  it  is  his  business;  the  right  of  his  credit- 
ors against  a  business  which  he  conducts  can  be 
questioned  only  when  by  statute  she  can  trade  alone. 
When  he  has  been  using  her  property  in  his  busi- 
ness, her  rights  are  at  best  those  of  a  creditor.  In 
some  cases  where  a  wife  has  amassed  a  fortune 
through  the  efforts  of  her  husband,  it  has  been  held 
that  a  court  of  equity  would  in  favor  of  his  creditors 
mcike  some  apportionment — treat  the  husband  and 
wife  as  it  were  as  partners.  Whether  the  business 
is  the  husband's  or  the  w^ife's  is  simply  a  question  of 
fact,  the  burden  of  proof  being  generally  on  the 
wife  to  show^  that  the  business  w^as  hers.  So  whether 
there  is  fraud  is  a  question  of  fact. 

(e)  Illustrations. — Thus,  where  a  husband 
with  his  team  did  a  great  deal  of  work  on  his  w^ife's 
property,  and  his  creditors  attempted  to  sell  the  crop 
for  his  debts,  the  court  held  that  he  could  give  to  her 
the  labor  of  himself  and  his  beasts,  and  that  the  ac- 
cretions to  her  property  continued  hers  and  could 

35 


WOMAN  UNDER  THE  LAW 

not  be  touched  by  his  creditors.  Where  a  manufac- 
turer of  large  experience  failed,  and  then  started  up 
again  with  his  wife's  money  and  in  her  name,  and 
made  a  fortune,  the  court  allowed  her  her  money 
and  interest,  but  held  the  remaining  profits  for  his 
debts.  Where,  w^hile  the  wife's  earnings  belonged 
to  her  husband,  he  consented  that  she  should  trade 
in  her  own  name,  but  took  part  himself  in  the  busi- 
ness, the  business  was  held  his,  and  therefore  liable 
for  his  debts. 

(f)  Statutes. — In  some  States  there  are 
statutes  expressly  referring  to  this  subject. 

The  land  of  one  spouse  is  not  liable  for  im- 
provements placed  upon  it  by  the  other,  either  to 
such  other  or  to  such  other's  creditors,  except  (  1  ) 
in  the  case  of  a  contract  by  the  owner  of  the  land 
w^hich  renders  it  liable,  or  (2)  as  against  creditors  in 
the  case  of  actual  fraud.  As  a  general  rule  improve- 
ments placed  upon  real  estate  without  any  agree- 
ment of  the  owner  to  the  contrary,  become  a  part  of 
the  realty  and  are  lost  to  the  party  who  places  them 
there  and  to  his  creditors.  As  between  the  parties 
in  the  absence  of  contrsict  there  seems  to  be  no 
ground  even  for  equitable  interference,  although, 
when  a  husband  improperly  uses  his  wife's  money 
to  improve  his  lands  equity  will  cause  her  to  be 
reimbursed  when  the  lands  are  sold.  Nor  ought  a 
wife's  land  to  be  liable  at  all  for  improvements 
placed  on  them  against  her  wishes  or  without  her 
consent.  But  when  a  husband,  who,  within  the 
know^ledge  of  his  wife,  is  indebted,  with  her  consent 
improves  her  property,  and  becomes  unable  to  pay 
his  debts,  there  is  good  ground  for  equitable  inter- 
ference. 

(a)  When  a  husband  buys  with  his  wife's 
money  in  his  own  name,  there  arises  a  resulting 
trust  in  her  favor,  unless  a  different  intention  on  her 

36 


MARRIAGE    SETTLEMENTS 

part  is  shown,  and  the  burden  of  proof  is  on  the 
husband  to  show  she  intended  a  gift  to  him,  which 
is,  however,  prima  facie  established  by  proof  of  her 
knowledge  and  consent.  The  wife,  on  her  part, 
must  clearly  show  that  her  money  was  paid.  When 
such  a  resulting  trust  has  arisen,  the  husband's  cred- 
itors cannot  complain  if  he  conveys  the  legal  title 
to  her  though  he  does  so  to  defeat  their  remedies 
against  the  property.  While  this  property  is  not 
liable  for  the  husband's  debts,  his  bona  fide  assignee 
for  value  without  notice  takes  it  clear  of  the  trust. 

(b)  When  a  husband  buys  with  his  own 
money  in  his  wife's  name,  the  transaction  is  deemed 
an  advancement  and  gift  to  her,  unless  a  different 
intention  on  his  part  is  shown,  as  where  she  had 
agreed  to  hold  it  for  him.  or  vv^as  invested  with  the 
title  for  his  convenience,  he  being  ill,  or  a  foreigner. 
In  such  cases  no  resulting  trust  arises  in  favor  of 
himself,  or  his  heirs,  but  one  does  arise  in  favor  of 
such  creditors  of  his  as  could  have  set  aside  a  direct 
conveyance  of  equal  value  from  him  to  her,  that  is 
to  say,  existing  creditors,  unless  the  settlement  was 
fair  and  reasonable,  but  not  subsequent  creditors, 
unless  there  was  fraud  in  fact.  For  a  married 
woman  may  be  trustee,  even  by  implication  and 
against  her  will.  Still  in  these  cases  she  is  trustee 
only  to  the  extent  of  the  money  paid  by  her  hus- 
band. 

(c)  Every  purchase  by  a  married  woman  in 
her  own  name  is  deemed  to  have  been  made  with 
her  husband's  money,  but  she  may  show  that  her 
funds  were  used.  So  if  she  paid  only  a  part  she  is 
directly  interested  in  the  purchase  to  that  extent,  and 
holds  the  title  as  security  when  it  is  assailed  by  her 
husband's  creditors. 

(d)  A  purchase  by  a  married  woman  with 
her  husband's  funds  in  her  own  neune  is  deemed  a 

37 


WOMAN  UNDER  THE  LAW 

settlement  by  him  on  her,  unless  it  appears  that  she 
did  so  wrongfully,  or  with  a  different  purpose. 

(e)  A  purchase  with  the  money  of  both  in 
the  name  of  one  is  deemed  a  gift  to  that  one,  unless 
the  other  shows  a  different  intent,  or  a  breach  of 
trust.  If  the  purchase  is  in  the  name  of  both,  a 
tenancy  by  entireties  is  created. 

(f)  A  resulting  trust  can  be  enforced  only 
in  equity. 

A  wife  has  a  direct  interest  in  the  life  of  her 
husband,  which  may  be  insured  by  him  (and  by 
her  under  special  statutes)  for  her  benefit.  When 
such  insurance  has  been  made  the  policy  is  her 
separate  property,  the  proceeds  belong  not  to  the 
community  but  to  her  and  her  representatives;  she 
may  assign  it,  even  for  her  husband's  debt;  but 
such  assignment  must  be  free  from  fraud  and 
duress.  He  cannot  assign  it  or  defeat  her  rights, 
as  by  a  fraudulent  surrender,  nor  can  either  of  them 
so  defeat  the  rights  of  children,  who  are  also  bene- 
ficiaries; still,  if  he  survives  her  he  may  surrender 
a  policy  taken  out  for  her  benefit,  or  dispose  of  it  by 
will,  or  have  another  person,  as  a  second  w^ife,  made 
beneficiary.  Her  separate  estate  is  not,  however, 
liable  for  the  premiums.  If  a  husband  assigns  a 
policy  for  his  benefit  to  his  wife  for  hers,  it  may, 
just  as  any  other  assignment,  be  a  fraud  on  his 
creditors;  so  if  he  surrenders  a  policy  in  his  name 
and  takes  out  one  in  hers,  for  this  is  really  an  as- 
signment; so  if  he  makes  a  large  and  unreasonable 
insurance  in  her  favor  w^hen  he  is  indebted,  but  even 
against  creditors  he  may  insure  his  life  for  her 
benefit  for  a  reasonable  amount.  Statutes  often 
exempt  insurance  policies  from  the  claims  of 
creditors. 

Contracts  and  conveyances  by  a  wife  for  the 
benefit  of  her  husband's  creditors  are  in  reality  in- 

38 


MARRIAGE    SETTLEMENTS 

directly  contracts  and  conveyances  with  him.  But 
special  considerations  have  arisen  with  reference 
to  the  wife's  capacity  to  be  surety  for  her  husband 
and  to  the  incidents  of  her  suretyship. 

(a)  Capacity  Under  General  Powers. — In 
the  absence  of  express  prohibition  in  the  settlement 
or  statute  whence  she  derives  her  capacity  to  con- 
tract, a  wife  can  to  the  full  extent  of  that  capacity, 
equitable  or  statutory,  contract  as  surety  for  her 
husband.  Thus,  mortgages  by  the  wife  for  the  hus- 
band's debts  are  common,  so  are  assignments  of  per- 
sonalty;  and  a  married  woman  who  can  make  a  pro- 
missory note  can  endorse  one  for  her  husband. 

(b)  Capacity  Limited  by  Statute. — In  some 
States  statutes  expressly,  or  by  necessary  implica- 
tion, prohibit  a  wife's  contracts  as  surety  for  her 
husband.  But  such  is  not  the  effect  of  statutes  for- 
bidding contracts  between  husband  and  wife,  or 
providing  that  a  wife's  property  shall  not  be  liable 
for  her  husband's  debts.  Nor  does  a  statute  which 
prohibits  such  contracts  as  to  her  statutory  separate 
property  affect  her  capacity  as  to  her  equitable 
separate  property. 

(e)  Contract  Otherwise  Binding. — The  con- 
tract must,  however,  not  only  be  one  which,  though 
a  married  woman,  she  has  capacity  to  make,  but 
also  one  which  would  bind  her  as  surety  if  unmar- 
ried. 

(d)  Implied  Suretyship. — Whenever  a  wife 
conveys  or  mortgages  her  property,  or  binds  herself 
for  her  husband's  debt  she  does  so  prima  facie 
simply  as  his  surety;  but  whether  she  is  so  or  not 
depends  upon  her  intent,  and  the  debt  may  be 
shown  to  have  really  been  hers.  Nor  is  she  a  surety 
so  far  as  concerns  creditors  if  she  is  one  of  the 
original  contractors  and  nothing  else  appears. 

39 


WOMAN  UNDER  THE  LAW 

(e)  Incidents  of  her  Suretyship. — Whenever 
a  wife  is  expressly  or  impliedly,  as  above,  surety  for 
her  husband,  she  has  the  same  rights  as  other  sure- 
ties. Thus,  she  has  her  equity  of  exoneration.  She 
may  not  only,  if  she  has  paid  his  debt,  go  against 
him  for  reimbursement  pari  passu  w^ith  his  other 
creditors,  being  subrogated  to  the  rights  of  the 
creditor  she  has  paid,  but  she  may  compel  him  or 
his  representatives  to  redeem  her  goods  which  have 
been  pledges  for  his  debt,  and  after  his  death  she  or 
her  representative  or  her  creditor  may  have  her 
property  exonerated  of  its  liability  out  of  his  real 
and  personal  estate.  As  in  the  case  of  other  sureties 
she  may  compel  the  creditor  to  first  exhaust  the 
principal's  means;  if  any  of  his  securities  are  re- 
leased, or  his  time  is  extended,  or  if  he  buys  the 
debt,  she  is  discharged.  If  her  mortgaged  estate  is 
sold  for  her  husband's  debt  under  decree,  she  may 
have  a  decree  over  against  him. 

In  a  case  which  was  decided  by  the  Supreme 
Court  of  Massachusetts  in  1888,  a  man  in  an  in- 
solvent condition  upon  entering  into  an  engage- 
ment of  marriage  and  w^ith  intent  to  defraud  his 
creditors,  orally  promised  his  intended  wife  to  give 
her  certain  bonds  as  a  marriage  settlement  and  sub- 
sequently before  the  marriage  delivered  the  bonds 
to  her  upon  an  understanding  that  upon  the  con- 
summation of  the  marriage  they  would  become  her 
absolute  property;  and  the  bonds  remained  in  her 
possession  until  after  they  were  married.  The 
court  held,  that  the  transaction  amounted  to 
nothing  more  than  an  executory  contract  to  transfer 
the  bonds  upon  the  marriage  which  was  without 
valuable  consideration  and  void  as  against  his  as- 
signee in  insolvency  even  if  she  did  not  participate 
in  the  fraud.  It  will  readily  be  seen  how  imperative 
it  is  that  a  woman  be  professionally  advised  and 

40 


MARRIAGE    SETTLEMENTS 

instructed  with  reference  to  the  ante-nuptial  agree- 
ment. In  another  case,  in  Massachusetts,  a  legal 
contract  and  promise  of  marriage  made  in  good 
faith  by  a  woman  to  one  who  had  executed  to  her  a 
deed  of  land  for  the  purpose  of  inducing  her  to 
marry  him  the  court  held,  that  she  would  be  entitled 
to  hold  the  land  against  the  man's  creditors  although 
the  marriage  was  prevented  by  his  death;  the 
promise  of  marriage,  made  in  good  faith,  furnish- 
ing a  good  consideration  for  the  deed. 

In  another  case,  a  man,  in  consideration  of 
marriage,  assigned  to  his  intended  wife  all  his  right 
and  interest  in  an  annuity  to  have  and  to  hold  to 
her  during  the  continuance  of  the  marriage,  and 
afterwards  married  her;  it  was  held  by  the  Massa- 
chusetts Supreme  Court,  that  upon  a  divorce  from 
the  bonds  of  matrimony  granted  on  her  libel  for 
his  cruelty,  her  interest  in  the  annuity  ceased. 

But  in  the  absence  of  any  express  provision 
to  that  effect  or  an  implication  of  such  an  intent 
from  the  whole  instrument,  a  provision  in  an  ante- 
nuptial agreement  for  the  benefit  of  either  of  the 
parties  is  not  annulled  by  n  divorce  although  it  was 
granted  for  his  or  her  adultery. 

It  is  fully  conceded  by  the  authorities  that  the 
ante-nuptial  agreement  without  the  intervention  of 
the  trustee,  which  is  necessary  in  agreements  for 
separation,  is  good  and  effectual.  If  an  ante-nuptial 
agreement  gives  power  to  dispose  of  property  by 
will,  the  power  may  be  exercised  by  a  will  imme- 
diately executed,  although  prior  to  the  marriage. 
The  reason  given  for  holding  that  marriage  is 
deemed  to  be  a  revocation  of  a  woman's  will — that 
she  thereby  divests  herself  of  the  power  of  revoking 
it  and  destroys  the  ambulatory  character  necessary 
to  the  will, — does  not  apply  to  an  appointment  by 
will.     The  woman  has  the  same  authority  to  ex- 

41 


WOMAN  UNDER  THE  LAW 

ecute  the  power  of  revocation  and  appointment 
when  married  as  before.  The  nature,  not  the  form 
of  the  instrument  determines  whether  at  common 
law  or  under  statutes,  it  is  a  will  of  which  marriage 
is  a  revocation. 

By  an  ante-nuptial  agreement  made  between  a 
man  and  his  intended  w^ife,  she  was  to  hold  her 
property  to  her  sole  and  separate  use  and  w^as  to 
advance  to  the  intended  husband  certain  promis- 
sory notes  owned  by  her,  with  the  proceeds  of  which 
he  was  to  redeem  his  mortgaged  farm  and  convey 
half  thereof  to  her  and  have  the  use  of  said  half  so 
long  as  he  should  be  a  faithful  husband  to  her.  He 
had  no  legal  right  to  redeem  said  farm,  the  right 
to  redeem  it  having  wholly  gone  from  him.  Hiey 
were  subsequently  married  and  the  husband  soon 
after  took  said  notes  from  his  wife  w^ithout  her  con- 
sent and  put  them  into  the  hands  of  his  attorneys 
for  collection  for  him.  The  wife  petitioned  the 
court  to  appoint  a  trustee  to  hold  her  separate  prop- 
erty in  trust  for  her  and  the  court  appointed  such 
trustee  to  whom  the  wife  conveyed  all  her  separate 
property  in  trust.  The  trustee  brought  a  bill  in 
equity  against  the  husband  and  his  attorneys,  pray- 
ing that  they  might  be  required,  by  decree,  to  deliver 
said  notes  to  him  and  might  be  restrained  from  pros- 
ecuting actions  against  the  makers  of  the  notes  and 
from  receiving  any  money  due  thereon.  The  court 
held  that  the  trustee  was  entitled  to  a  decree  against 
the  husband,  declaring  the  trustee's  title  to  the  notes 
and  the  proceeds  thereof,  and  also  to  a  decree 
against  the  husband's  attorneys,  requiring  them  to 
account  for  and  deliver  over  to  the  trustee  the  notes 
or  the  proceeds  thereof  on  payment  of  their  legal 
costs  and  expenses  for  services  and  disbursements. 

42 


MARRIAGE    SETTLEMENTS 

An  interesting  case  was  decided  by  the  Massa- 
chusetts Supreme  Court  in  1 887  wherein  it  ap- 
peared that  a  woman's  signature  to  an  ante-nuptial 
contract  was  procured  by  fraud;  she  testifying  that 
her  intended  husband  had  promised  to  give  her  five 
thousand  dollars  and  a  farm  worth  five  thousand 
dollars;  that  he  told  her  while  she  was  reading  the 
contract  at  his  lawyer's  office  to  "hurry  up  and  sign 
it,  "  as  his  horse  would  not  stand;  that  she  said,  "I 
suppose  it  is  just  as  you  talked?  '  To  which  he  re- 
plied, "Yes."  And  that  she  thereupon  signed  it 
knowing  the  contents  only  from  what  he  had  said. 
TTie  provision  for  her  not  being  what  he  had  prom- 
ised; and  two  other  witnesses  having  testified, — one 
that  the  husband  had  told  him  that  he  promised  to 
settle  upon  her  ten  thousand  dollars  of  which  the 
farm  was  to  be  a  part,  the  other,  that  he  was  going  to 
give  her  that  sum  in  money  and  property  equally; 
the  court  held,  that  her  testimony  would  warrant 
a  finding  that  she  was  induced  to  sign  the  contract, 
by  a  fraudulent  misrepresentation  of  its  contents 
and  that  the  testimony  of  the  other  witnesses  was 
admissible  to  confirm  her  evidence. 

A  woman  may,  after  marriage,  repudiate  an 
ante-nuptial  agreement  entered  into  by  her  by  the 
fraudulent  representations  of  her  intended  husband 
as  to  its  contents  and  no  ratification  of  such  a  con- 
tract during  her  marriage  will  prevent  her  from  ex- 
ercising the  right.  If  she  entered  into  it  without 
fraud  or  misrepresentation,  however,  and  all  of  the 
necessary  contractual  elements  existed  and  it  has 
been  fully  performed  on  the  husband's  side,  a  court 
of  equity  will  enforce  its  performance.  She  can- 
not repudiate  its  conditions  if  she  has  accepted  its 
benefits. 

The  surviving  husband  of  a  woman,  who  in 
contemplation  of  marriage,  made  with  him  an  ante- 

43 


WOMAN  UNDER  THE  LAW 

nuptial  agreement  providing  that  in  case  she  should 
die  leaving  issue  surviving  her,  a  certain  note  and 
mortgage  should  be  held  to  the  use  of  her  intended 
husband  for  his  life  with  remainder  to  her  issue  in 
fee  simple  and  who  has  since  died  leaving  issue  sur- 
viving her,  may  maintain  a  bill  of  equity  against 
one  to  whom  she,  in  her  last  sickness,  delivered  the 
note  and  mortgage  with  directions  to  retain  and 
hold  them  in  trust  for  the  purpose  declared  in  the 
ante-nuptial  contract  and  especially  to  protect  the 
rights  and  interest  of  her  children,  to  compel  the 
delivery  of  the  same  either  to  himself  or  to  such 
person  as  the  court  may  appoint  trustee.  Death- 
bed repentance  of  her  act  executing  an  ante-nuptial 
agreement  w^ould  be  unavailing  unless  it  could  be 
shown  that  the  husband  had  been  dilatory  in  carry- 
ing out  his  part  of  the  agreement  without  a  sufficient 
reason  therefor. 

An  ante-nuptial  contract  whereby  a  man 
agrees  that  real  estate  shall  be  transferred  to  his 
w^ife  upon  his  decease,  based  on  a  meritorious  con- 
sideration, though  released  or  extinguished  at  law^, 
is  held  good  in  equity  and  "will  be  enforced  by  a 
court  of  equity  against  the  heirs  of  the  party  in 
default.  The  Court  will  hear  and  determine  such  a 
case  according  to  the  course  of  proceedings  in  Chan- 
cery and  w^ill  make  such  decree  therein  as  justice 
and  equity  may  require.  The  court  will  have 
regard  to  the  intention  to  be  deduced  from  the  whole 
instrument  of  conveyance  to  a  greater  extent  in 
construing  trust  estates  created  by  ante-nuptial 
contracts  than  in  the  construction  of  like  limitations 
in  legal  estates.  The  intention  of  the  party  is  sought 
with  as  great  eagerness  as  in  the  case  of  wills. 

A  settlement  in  trust  of  personal  property 
completely  executed  w^ithout  any  circumstances 
tending  to  show  mental  incapacity,  mistake,  fraud 

44 


MARRIAGE    SETTLEMENTS 

or  undue  influence  is  binding,  and  will  be  enforced 
against  the  settlor  and  his  representatives  and  can- 
not be  revoked  except  so  far  as  a  power  of  revoca- 
tion has  been  reserved  in  the  deed  of  settlement; 
and  if  by  the  terms  of  the  deed  the  income  of  the 
property  is  to  be  applied  by  the  trustee  to  the  benefit 
of  the  settlor  during  his  lifetime,  the  validity  or 
effect  of  any  further  trusts  declared  in  the  instru- 
ment will  not  be  impaired  thereby. 

A  power  of  revocation  should  be  reserved  in 
the  deed,  otherwise  it  cannot  be  revoked  no  matter 
how  many  changes  may  have  taken  place  since  its 
execution  which  would  seem  to  warrant  setting  it 
aside. 

Any  provision  in  the  contract  restraining 
alienation  is  against  public  policy  and  contrary  to 
law.  No  condition  whatever  can  give  it  life  and 
validity  and  it  is  void  against  creditors. 

If  the  wife  becomes  insane,  a  bill  in  equity  lies 
to  compel  the  trustee  under  an  ante-nuptial  agree- 
ment securing  the  income  of  property  to  the  wife's 
sole  and  separate  use  to  pay  to  her  husband  and 
guardian  such  portion  of  the  income  as  is  reason- 
able for  her  support. 

An  agreement  by  a  woman  on  the  eve  of  mar- 
riage, to  pay  the  debt  of  her  intended  husband 
which  is  procured  by  threats  of  arresting  him,  can- 
not be  enforced  in  equity. 

An  unmarried  woman  may  make  a  will,  and 
then  an  ante-nuptial  agreement  with  her  intended 
husband  providing  for  her  retention  of  full  control 
over  her  property,  and  that  the  marriage  shall  not 
revoke  her  will,  and  it  will  not  be  revoked  by  her 
subsequent  marriage,  no  issue  having  been  born. 

An  ante-nuptial  contract  may  be  enforced  by 
bill  in  equity  against  the  trustee  or  any  person  into 
whose  hands  the  property  has  come  after  the  death 

45 


WOMAN  UNDER  THE  LAW 

of  either  of  the  parties;  but  it  will  not  be  so  en- 
forced if  the  party  seeking  to  enforce  it  has  not  ful- 
filled it  on  his  or  her  part. 

In  a  case  where  there  is  no  trustee  and  a  hus- 
band is  violating  an  ante-nuptial  contract,  a  court 
of  equity  will,  upon  the  wife's  application,  appoint  a 
trustee  to  enforce  and  protect  her  rights;  and  such 
a  trustee  may  maintain  a  bill  against  the  husband  to 
compel  fulfilment  of  the  agreement. 

A  w^oman  may  bar  herself  by  an  ante-nuptial 
agreement  of  her  distributive  share  or  of  her  statu- 
tory allowance. 

Ante-nuptial  agreements  must  conform  to  the 
usual  legal  requirements  of  other  kinds  of  contracts ; 
if  they  are  evidenced  only  by  oral  promises  and 
fragments  of  letters  they  are  insufficient,  being 
within  the  statute  of  frauds  which  requires  certain 
contracts  to  be  in  w^riting. 

Certain  statements  made  by  a  woman  of 
wealth  before  marriage  in  letters  to  her  betrothed 
to  the  effect  that  a  portion  of  her  property  should 
be  treated  as  joint  property,  are  held  not  to  consti- 
tute a  ante-nuptial  agreement  entitling  her  husband 
to  an  interest  in  his  wife's  estate  while  they  are 
living  apart  after  a  permanent  separation. 

A  promise  by  a  woman  to  marry  immediately 
a  man  she  has  promised  to  marry  at  some  indefinite 
future  time,  is  a  good  consideration  for  an  assign- 
ment to  her,  two  weeks  before  marriage  of  all  his 
interest  in  his  father's  estate.  Such  an  assignment, 
how^ever,  is  not  an  ante-nuptial  contract;  but  if  at 
the  time  of  executing  it  the  man  was  free  from  debt, 
except  to  the  woman,  and  no  real  purpose  to  hinder 
or  delay  future  creditors  is  shown,  it  is  valid  as 
against  future  creditors. 

If  a  man  and  w^oman  enter  into  an  ante-nuptial 
contract  by  the  terms  of  which,  after  their  marriage 

46 


MARRIAGE    SETTLEMENTS 

they  are  to  retain  their  respective  estates,  with  a 
provision  that,  if  the  w^ife  survive  the  husband  she 
shall  receive  within  a  given  time  from  the  time  of 
his  death,  a  certain  sum  of  money  from  his  estate; 
that  to  secure  such  payment  she  shall  have  posses- 
sion of  certain  real  estate  of  which  he  is  seised, 
w^hich  shall  become  hers  absolutely  if  the  payment 
is  not  made  within  the  time  stated,  and  that  upon 
his  death  she  shall  by  deed  release  all  interest  in  his 
estate  excepting  said  stipulated  sum  and  the  security 
for  the  payment  thereof;  after  their  marriage  and 
the  death  of  the  husband  the  wife  will  be  required 
to  release  all  her  interest  in  her  husband's  estate 
upon  the  tender  to  her  of  the  stipulated  sum  and  a 
demand  for  said  release. 

The  foregoing  illustrations  will  give  an  ade- 
quate idea  of  the  general  characteristics,  the  utility 
and  the  subtlety  of  the  ante-nuptial  agreement. 
Every  woman  contemplating  marriage  should  con- 
sult a  lawyer  of  experience  as  to  the  construction, 
scope  and  effect  of  any  such  instrument  which  she 
may  wish  to  take  under  consideration. 

It  should  be  borne  in  mind  at  all  times,  how^- 
ever,  that  a  mere  oral  agreement  to  execute  an  ante- 
nuptial contract  is  of  no  force  or  effect,  being 
within  the  statute  of  frauds,  the  main  object  of 
which  w^as  to  take  away  the  facilities  for  fraud  and 
the  temptation  to  perjury  which  arose  in  verbal 
obligations,  and  the  substance  of  which  has  been 
enacted  in  almost  all  states  of  the  Union  with  other 
provisions  of  the  same  general  character  to  prevent 
frauds  and  perjuries. 

As  to  the  terms  of  an  ante-nuptial  contract,  or 
just  how  and  in  what  manner  and  proportions 
property  is  to  be  settled  thereunder,  the  woman 
must  be  the  sole  judge,  guided  by  the  advice  and 

47 


WOMAN  UNDER  THE  LAW 

judgment  of  friends  who  are  in  every  way  qualified 
to  advise  her  upon  such  a  vitally  important  matter. 

The  status  of  woman  after  marriage  is  prob- 
lematical to  say  the  least,  for  the  mind  of  man 
veers  like  the  wind  and  frequently  "bloweth  where 
it  listeth  and  thou  hearest  the  sound  thereof,  but 
canst  not  tell  whence  it  cometh  and  whither  it 
goeth,"  and  some  men  there  are,  and  always  will  be, 
who  prey  upon  the  confiding  nature  of  woman  and 
her  lack  of  legal  knowledge.  "These  are  mur- 
murers,  complainers,  walking  after  their  own  lusts; 
and  their  mouth  speaketh  great  swelling  words  hav- 
ing men's  persons  in  admiration  because  of  advan- 
tage." 

An  ante-nuptial  contract  has  just  been  recorded 
in  Rhode  Island  which  shows  that  one  woman  knew 
how  to  protect  her  property  and  incidentally  herself 
from   the   possible   undue   influence,   importunities 

and  threats  of  her  intended  husband:      Miss  

inherited  $12,000,000  from  her  grandmother  and 

shortly  thereafter  married  Lord .     Previous  to 

the  marriage  ceremony  an  ante-nuptial  contract  was 
arranged  and  executed  transferring  all  the  estate 
and  property  of  the  prospective  bride  to  the  control 
of  two  trustees,  and  providing  that  the  income  shall 
be  paid  to  her  until  she  becomes  thirty-five  years  old. 
If  she  dies  before  reaching  the  age  of  thirty-five, 
her  Lord  is  to  be  paid  $1  00,000  for  his  absolute  use. 
If  children  are  left.  Lord is  to  receive  the  in- 
come from  $100,000  for  the  remainder  of  his  life, 
and  the  children  equal  shares  of  the  remaining 
estate  after  reaching  the  age  of  twenty-one.     It  will 

be  noted  that  only  in  the  event  that  Lady dies 

before  reaching  the  age  of  thirty-five  is  her  Lord  to 
be  paid  anything.  The  trust  fund  would  remain 
intact  even  then,  and  go  to  the  children  when  they 
reached  the  age  of  twenty-one.   The  financial  status, 

48 


MARRIAGE    SETTLEMENTS 

at  least  of  this  woman,  is  permanently  and  deci- 
sively fixed.  Should  her  "Lord  and  master"  ever 
attempt  to  meddle  or  tamper  w^ith  her  property  she 
might  sportively  quote  the  words  of  Second  Samuel 
— "How  are  the  mighty  fallen  in  the  midst  of  the 
battle!  O  Jonathan,  thou  wast  slain  in  thine  high 
places." 


49 


CHAPTER  III. 
PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

A  contract  mutually  entered  into  by  a  man  and 
a  woman  that  they  will  marry  each  other,  is  com- 
monly called  a  promise  to  marry.  It  is  necessary 
that  such  a  contract,  either  express  or  implied,  pre- 
cede a  wedding  ceremony,  which,  of  course,  can- 
not be  agreed  upon  and  performed  simultaneously. 

When  such  a  contract  has  been  made,  and  sub- 
sequently, either  of  the  parties  thereto  refuses  to 
marry  thereunder,  the  other  may  bring  a  suit  for 
damages;  such  suits  are  called  breach  of  promise 
suits  and  when  being  tried,  usually  afford  the  social 
sensation  of  the  day. 

The  contract  is  the  mutual  agreement  of  a  man 
and  a  woman  to  become  husband  and  w^ife  in  the 
future,  and  in  form,  must  satisfy  the  legal  require- 
ments, as  to  parties,  consideration,  and  other  mat- 
ters, to  the  same  extent  as  contracts  of  other  kinds. 

The  failure  to  carry  out  the  terms  of  any  kind 
of  a  contract  is  a  breach  of  promise,  but  the  expres- 
sion has  been  limited  colloquially  to  broken  prom- 
ises of  marriage.  There  must  be  an  offer  of  mar- 
riage or  promise  to  marry  by  one  of  the  parties 
made  known  to  the  other;  a  mere  intention  to 
marry,  communicated  to  third  persons  out  of  the 
other  person's  presence,  is  no  offer  or  promise  at 
all.  The  offer  need  not  be  in  writing  unless  it  is 
one  of  a  series  of  stipulations  and  counter-stipula- 
tions dependent  upon  each  other,  or  is  not  to  be 

50 


1 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

performed  within  one  year;  it  may  be  made  through 
a  friend  or  agent  and  need  not  be  made  in  express 
words;  it  need  only  appear  that  both  parties  un- 
derstood it  to  be  an  offer  of  marriage.  It  is  suf- 
ficient if  there  is  shown  a  definite  understanding 
betw^een  the  parties,  their  friends  and  relations  that 
their  marriage  is  to  take  place,  and  this  may  be 
shown  by  conduct. 

The  acceptance,  like  the  offer,  may  be  made 
through  a  friend  or  agent  and  need  not  be  in  express 
words,  but  may  be  inferred  from  the  promisee's 
conduct,  and  it  must  appear  that  it  was  made  within 
a  reasonable  time  after  the  offer.  The  accepted 
promise  must  be  certain.  Thus  a  promise  to 
marry  "perhaps  "  could  not  be  the  foundation  of  a 
suit,  and  a  man's  promise  to  marry  a  woman  if 
he  married  anyone,  is  void,  both  because  it  is  too 
indefinite  and  because  it  acts  virtually  as  a  restraint 
on  marriage  and  is  against  public  policy.  A  prom- 
ise to  marry  after  the  death  of  a  parent,  the  parent 
having  died,  has  been  held  good,  and  a  promise  to 
marry  a  woman  after  she  had  had  an  operation  per- 
formed, the  operation  not  having  been  performed, 
has  been  held  not  binding.  Conditions  which  are 
insignificant  are  sometimes  disregarded,  as  where  a 
man  promised  to  marry  plaintiff  when  certain  car- 
riages should  be  finished,  and  they  were  not  fin- 
ished. The  court  held  such  a  limitation  not  of  the 
essence  of  the  contract  and  the  man  bound  never- 
theless. 

But  a  man's  promise,  conditional  upon  his  get- 
ting a  divorce  from  his  w^ife  or  upon  her  dying,  is 
void;  and  so  is  a  promise  conditional  upon  the  prom- 
isee's having  intercourse  with  him  or  continuing  to 
live  for  a  time  as  his  mistress,  as  such  promises  are 
contrary  to  public  policy. 

51 


WOMAN  UNDER  THE  LAW 

If  the  parties  do  not  themselves  make  the  con- 
tract definite  as  to  time  and  place,  the  law  presumes 
that  a  contract  to  marry  is  a  promise  to  marry 
within  a  reasonable  time,  and  at  the  residence  of 
the  woman.  In  determining  what  is  a  reasonable 
time,  the  age  and  circumstances  of  the  parties  will 
be  considered. 

The  consideration  in  contracts  of  this  kind  is 
the  mutual  promise.  There  may  be  some  other  con- 
sideration added  which  will  neither  add  to  nor  de- 
tract from  the  contract  unless  it  be  immoral.  Thus 
a  promise  to  marry  made  after  seduction,  in  con- 
sequence thereof  is  binding,  but  a  promise  to  marry 
on  consideration  of  future  intercourse  is  void,  as 
against  public  policy. 

The  contract  must  be  made  between  com- 
petent parties.  Thus,  an  infant,  not  capable  of 
making  ordinary  contracts,  though  he  is  old  enough 
to  marry,  and  though  he  accomplished  seduction  by 
his  promise,  is  not  bound  by  a  promise  of  marriage, 
though  as  in  the  case  of  other  contracts  with  infants, 
he  may  sue  on  the  promise  to  him. 

But  in  all  cases  where  the  party  is  legally  com- 
petent to  contract  and  knows  of  his  incompetence 
to  marry,  he  may  be  liable  in  an  action  for  deceit, 
though  his  promise  to  marry  be  void.  The  fact  that 
the  party  has  already  promised  to  marry  one  or 
more  w^omen  will  not  affect  his  capacity  to  promise 
to  marry  yet  another. 

Force,  fraudulent  concealment  and  false  repre- 
sentations may  invalidate  contracts  to  marry,  just 
as  they  invalidate  other  contracts. 

A  promise  made  at  the  point  of  a  pistol,  or  to 
get  free  from  actual  confinement,  would  not  be  en- 
forceable. While  a  man  is  supposed  to  have  in- 
quired and  learnt  all  about  the  fortune,  condition, 
and  circumstances  of  a  woman  before  promising 

52 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

to  marry  her,  and  while  a  woman  is  not  bound  to 
disclose  anything  except  her  previous  unchastity  or 
her  unfitness  for  sexual  intercourse  (it  would  be  a 
fraud  to  sell  a  cow  with  such  a  defect  without  mak- 
ing it  known  to  the  purchaser),  any  false  represen- 
tation made  by  her  or  on  her  behalf,  with  her  knowl- 
edge, for  the  purpose  of  deceiving  the  promisor, 
constitutes  a  fraud,  and  in  such  cases  a  man's 
promise  is  not  binding,  whether  such  false  represen- 
tations relate  to  her  social  position  and  fortune  or 
to  her  character. 

Evidence  that  the  plaintiff's  brother  kept  a 
bawdy  house,  however,  without  in  any  way  con- 
necting the  plaintiff  with  it,  is  inadmissible  for  the 
defendant. 

It  is  not  the  duty  of  a  party  before  making  or 
accepting  an  offer  of  marriage  to  communicate  all 
the  previous  circumstances  of  his  or  her  life.  The 
parties  would  be  bound  if  they  became  engaged, 
without  making  any  investigations,  and  w^ithout 
receiving  any  assurances  or  representations  which 
led  to  the  engagement,  even  though  matters  were 
discovered  subsequently,  which,  if  known  at  the 
time,  would  have  prevented  the  engagement,  unless 
they  were  such  as  gave  a  right  to  the  other  party 
to  terminate  the  contract  upon  their  discovery. 

The  fact  that  the  woman  had  some  negro  blood 
in  her  veins,  or  that  her  motives  were  mercenary,  or 
that  there  was  a  want  of  affection  on  her  part  or  that 
there  was  an  incompatibility  resulting  from  dis- 
parity of  age,  difference  of  character  and  disposi- 
tion, and  other  causes  apart  from  fraud,  will  not 
justify  the  man,  as  a  matter  of  law  in  breaking  the 
contract.  Mere  silence  on  the  part  of  the  plainti£F, 
without  inquiry  by  the  defendant  though  resulting 
in  the  concealment  of  matters  which  would  have 
prevented  the  engagement  if  know^n,  will  not  con- 
stitute fraud. 

53 


V/OMAN  UNDER  THE  LAW 

But  a  partial  and  fragmentary  disclosure  ac- 
companied by  the  willful  concealment  of  material 
and  qualifying  facts,  is  a  misrepresentation  which 
will  avoid  a  contract  to  marry  subsequently  made. 
More  direct  proof  of  a  contract  to  marry  is  now  com- 
monly required  than  formerly.  Therefore,  a  prom- 
ise cannot  be  inferred  from  devoted  attention,  fre- 
quent visits  and  apparently  exclusive  attention;  nor 
from  mere  presents  or  letters  not  to  the  point;  nor 
from  the  plaintiff's  wedding  preparations  unknown 
to  the  defendant,  nor  from  the  woman's  unexplained 
possession  of  an  engagement  ring.  Courtship  alone, 
or,  mere  intention  to  marry  is  not  enough.  Court- 
ship is  not  an  agreement  to  marry.  The  fact  that 
the  plaintiff  consented  to  a  tw^o  year's  postponement 
of  the  w^edding  day  has  been  held  not  to  relieve  the 
defendant  from  his  promise. 

There  is  a  breach  of  the  contract  to  marry  enti- 
tling the  party,  not  in  default,  to  sue  for  damages  if 
a  party  refuses  to  marry  on  the  day  fixed,  or  when 
the  promise  w^as  general,  upon  request,  after  a 
reasonable  time  refuses  to  fix  a  day,  marries  some 
other  person,  or  repudiates  his  promise  and  declares 
that  he  will  not  be  bound  by  it.  In  either  of  the 
last  two  mentioned  cases  the  party  not  in  default 
need  not  w^ait  for  the  time  of  performance  to  arrive, 
or  request  the  fulfilment  of  the  promise,  but  may 
sue  at  once. 

When  a  request  is  required  in  the  case  of  a 
woman,  the  modest  expression  of  her  readiness  to 
be  married,  in  the  presence  of  the  man,  is  a  sufficient 
request. 

A  refusal  to  fulfil  the  contract  may  as  well  be 
manifested  by  acts  as  by  words.  After  the  lapse  of 
a  reasonable  time,  if  one  party,  without  sufficient 
excuse,  neglects  or  refuses  to  fulfil  his  promise,  the 
other  may  consider  this  a  breach  and  sue.      It  is 

54 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

sufficient  if  plaintiff  shows  that  defendant  has 
violated  his  promise  by  refusing  to  marry  her, 
without  averring  or  proving  an  offer  on  her  part  to 
marry  defendant. 

An  action  for  breach  of  promise  exists  inde- 
pendently of  statute,  by  the  common  law,  although 
at  an  early  date  in  this  country  it  was  questioned 
whether  such  an  action  could  be  brought,  and  efforts 
have  been  made  at  various  times  to  have  it  abol- 
ished. The  action  may  be  brought  by  either  a  man 
or  a  woman.  It  does  not  survive  against  a  party's 
representatives  unless  there  has  been  special 
damage. 

When  sued  for  breach  of  promise,  the  defend- 
ant may  show  either  that,  owing  to  the  absence  of 
some  requisite,  there  never  was  any  contract,  or 
that,  though  such  a  contract  did  exist,  he  did  not 
break  it  because  he  was  discharged  from  his  obliga- 
tion, either  by  the  plaintiff's  express  consent  or  by 
the  plaintiff's  consent  to  be  implied  by  the  jury  from 
her  conduct  or  by  the  plaintiff's  failure  to  carry  out 
some  condition  of  the  contract,  or  by  the  plaintiffs 
or  even  the  defendant's  having  become  physically 
or  mentally  unfit  to  marry  after  the  promise  w^as 
made,  or  by  the  plaintiff's  having  been  dissolute, 
or  guilty  of  such  brutal  or  immoral  conduct  as  shows 
her  unfit  to  expect  the  defendant  to  marry  her, 
though  excessive  drinking  has  been  held  not 
enough;  and  it  is  not  a  defence  that  after  the  prom- 
ise the  defendant  discovered  that  he  could  not  live 
happily  with  the  plaintiff.  It  is  doubtful  if  in  any 
mind  once  set  upon  a  breach  of  a  promise  to  marry 
there  could  be  any  dearth  of  such  discovery. 

It  is  not  a  defence  that  she  had  promised  to 
marry  someone  else  before  she  agreed  to  marry  him, 
or  that  he  made  her  promise  in  bad  faith,  or  that 
after  he  refused  to  marry  her  he  offered  to  carry  out 

55 


WOMAN  UNDER  THE  LAW 

his  contract.  Certainly  not  if  his  second  offer  came 
after  she  had  threatened  or  brought  suit.  If  the  de- 
fendant pleads  the  plaintiff's  bad  conduct  as  a  dis- 
charge he  must  show  that  his  refusal  to  consummate 
his  promise  was  due  to  such  bad  conduct,  and  that 
he  renounced  his  promise  as  soon  as  the  conduct 
happened  or  was  discovered  by  him.  If  he  con- 
tinues to  bask  in  the  radiant  sunshine  of  her  Cleo- 
patric  charms,  he  w^ill  be  held  to  have  slumbered 
fatally  upon  his  legal  rights.  And  dissolute  con- 
duct is  no  defence  whatever,  if  he  connived  at  or 
was  a  party  to  it.  He  must  come  into  court  with 
clean  hands  and  absolutely  free  from  any  participa- 
tion in  the  conduct  complained  of,  or  set  up  in 
defense. 

In  actions  for  breach  of  promise  of  marriage, 
damages  have  never  been  limited  to  the  rules  gov- 
erning actions  upon  simple  contracts  for  the  pay- 
ment of  money,  but  rests  with  the  sound  discretion 
of  the  jury  under  the  circumstance  of  each  partic- 
ular case,  subject  of  course  to  the  general  restric- 
tion that  a  verdict  influenced  by  prejudice,  passion 
or  corruption  will  not  be  allowed  to  stand.  To  keep 
cases  of  this  kind  out  of  the  courts,  exemplary  dam- 
ages may  properly  be  awarded.  The  plaintiff  is 
entitled  to  recover  not  only  an  indemnity  for  her 
pecuniary  loss  and  the  disappointment  of  her  reason- 
able expectations  of  material  and  worldly  advantage 
resulting  from  the  intended  marriage,  but  also  com- 
pensation for  w^ounded  feelings,  and  the  mortifica- 
tion and  pain  which  she  has  been  wrongfully  made 
to  undergo  and  for  the  harm  that  has  been  done  to 
her  prospects  in  life.  Thus,  there  may  be  given  in 
evidence,  and  the  jury  may  take  into  consideration 
in  estimating  the  damages,  the  defendant's  general 
reputation  for  wealth  (and  in  rebuttal  poverty)  and 
his  social  position. 

56 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

It  has  been  held  in  Arkansas,  however,  that  the 
damages  are  not  to  be  measured  by  the  weahh  or 
poverty  of  the  defendant,  though  his  wealth  and 
rank  may  be  pertinent  to  the  issue  as  showing  the 
injury  sustained  by  the  loss  of  marriage.  Evidence 
may  also  be  given  and  considered  of  the  length  of 
the  engagement,  the  depth  of  plaintiff's  devotion, 
her  lack  of  independent  means;  her  mortification 
and  injured  feelings  and  affections,  her  loss  of  virtue 
and  reputation;  but  not  her  loss  of  time  and  the 
expenses  of  medical  attendance;  her  altered  social 
condition  in  relation  to  her  home  and  family  due  to 
his  conduct,  and  her  expenses  in  preparation  for  the 
marriage.  But  no  facts  arising  after  suit  brought 
may  be  proved. 

in  aggravation  of  damages  it  may  be  proved  in 
some  states,  if  this  is  alleged  in  the  complaint,  that 
by  means  of  his  promise,  the  defendant  seduced 
her,  and  the  results  of  the  seduction,  as  the  expenses 
attending  the  birth  of  a  child,  or  the  pain  and  morti- 
fication of  bearing  a  bastard;  in  other  states,  on  the 
ground  that  the  plaintiff  must  have  been  a  particeps 
criminis  to  the  seduction,  and  therefore  could  not 
complain  of  it  and  the  jury  cannot  consider  it.  In 
aggravation,  also,  may  be  shown  the  mode  in  which 
the  engagement  was  broken,  the  cruel,  indecent 
and  insulting  conduct  of  the  defendant,  and  the 
fact  that  to  justify  his  refusal  he  has  pleaded  the 
plaintiff's  unchastity  in  bar,  whether  such  plea  was 
in  bad  faith  or  not;  though  in  some  states  to  en- 
hance damages  the  plea  of  justification  must  have 
been  made  in  bad  faith,  and  in  some  it  cannot  be 
taken  into  consideration  at  all,  and  in  mitigation  of 
damages  may  be  shown  the  fact  of  the  plaintiff's 
unchastity,  though  known  at  the  time  of  the  prom- 
ise or  condoned,  and  her  general  bad  character 
(good  character  in  rebuttal),  and  the  defendant's 

57 


WOMAN  UNDER  THE  LAW 

bad  character,  or  his  being  afflicted  with  a  contagi- 
ous or  incurable  disease,  and  any  misconduct  show- 
ing that  the  plaintiff  w^ould  be  an  unfit  companion 
in  married  life. 

But  not  that  since  the  commencement  of  the 
action  the  plaintiff  has  made  declarations  to  the 
effect  that  she  had  no  affection  for  the  defendant 
and  would  not  marry  him  but  for  his  property.  But 
such  declarations  made  before  the  action  w^ere  ad- 
mitted, and  not  the  fact  that  the  plaintiff  had  been 
trying  to  marry  someone  else,  or  the  probabilities 
of  unhappiness  resulting  from  the  marriage,  and 
not  that  the  defendant  had  seduced  the  plaintiff  or 
corrupted  her  morals,  rendering  her  a  less  desirable 
person  to  marry.  It  is  not  to  be  endured  that  a  man 
should  seduce  a  female  and  ruin  her  character  and 
standing  in  society,  and,  w^hen  she  comes  to  ask 
compensation  for  the  injury  under  which  she  is 
suffering,  avail  himself  of  her  humiliation  and  dis- 
grace to  diminish  her  claim  for  damages. 

In  Wisconsin,  marriage  between  first  cousins 
being  sanctioned  by  law,  such  kinship  of  the  parties 
is  not  a  defense,  nor  a  matter  in  diminution  of  dam- 
ages, in  an  action  for  breach  of  promise  to  marry. 

There  is  no  law^  and  no  inherent  power  in  the 
courts  to  compel  marriage.  Any  person  may  break 
a  marriage  engagement,  but  he  must  respond  to  the 
other  party  thereto  in  damages.  It  would  be  against 
public  policy  to  compel  two  persons  against  their 
will  to  become  man  and  w^ife.  This  sacred  relation 
should  be  entered  into  in  love  and  confidence,  not 
with  fear  and  hatred. 

In  England,  specific  performance  of  the  con- 
tract of  marriage  was  decreed  by  the  spiritual  court, 
compelling  a  celebration  of  the  marriage,  in  facie 
ecclesiae  in  early  times,  but  this  remedy  could  not 
be  pursued  if  a  suit  for  damages  was  brought.     The 

58 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

last  instance  known  of  the  bringing  of  a  suit  for 
specific  performance  was  in  1752  and  the  right  to 
bring  such  an  action  w^as  abolished  by  Lord  Hard- 
wick's  Act, 

There  is  a  tendency  on  the  part  of  wronged 
w^omen  to  shrink  from  the  publicity  and  notoriety 
attending  suits  for  breach  of  promise,  and  fear  of 
being  brought  into  public  ridicule  or  scorn  by  idle 
gossipers  likely  to  be  found  chiefly  among  her  fe- 
male acquaintances  (miscalled  friends),  and  sensa- 
tional newspaper  reports  of  the  delicate  details  of 
the  courtship,  which  must  be  disclosed  at  the  trial. 
Such  unwarranted  timidity  should  be  condemned. 
Men  should  be  taught  that  w^oman's  affection  cannot 
be  dealt  w^ith  w^antonly. 

Women  owe  a  threefold  duty  to  mankind  in 
general,  to  their  sex  in  particular  and  to  themselves 
more  in  particular,  to  bring  such  suits  wherever  the 
circumstances  legally  w^arrant  it. 

A  Chief  Justice  of  the  Massachusetts  Supreme 
Court  has  aptly  and  eloquently  treated  the  subject 
in  the  following  words: 

"We  can  conceive  of  no  more  suitable  ground 
of  application  to  the  tribunals  of  justice  for  com- 
pensation, than  that  of  a  violated  promise  to  enter 
into  a  contract,  on  the  faithful  performance  of 
which  the  interest  of  all  civilized  countries  so  essen- 
tially depends.  When  two  parties,  of  suitable  age 
to  contract,  agree  to  pledge  their  faith  to  each  other, 
and  thus  withdraw  themselves  from  that  intercourse 
with  society  which  might  probably  lead  to  a  similar 
connection  with  another, — the  affections  being  so 
far  interested  as  to  render  a  subsequent  engagement 
not  probable  or  desirable, — and  one  of  the  parties 
wantonly  and  capriciously  refuses  to  execute  the 
contract  which  is  thus  commenced,  the  injury  may 

59 


WOMAN  UNDER  THE  LAW 

be  serious,  and  circumstances  may  often  justify  a 
claim  of  pecuniary  indemnification. 

"When  the  female  is  the  injured  party,  there  is 
generally  more  reason  for  a  resort  to  the  laws  than 
when  the  man  is  the  sufferer.  Both  have  a  right  of 
action,  but  the  jury  will  discriminate  and  apportion 
the  damages  according  to  the  injury  sustained.  A 
deserted  female,  whose  prospects  in  life  may  be 
materially  affected  by  the  treachery  of  the  man  to 
whom  she  has  plighted  her  vows,  will  always  re- 
ceive from  a  jury  the  attention  which  her  situation 
requires ;  and  it  is  not  disreputable  for  one,  who  may 
have  to  mourn  for  years  over  lost  prospects  and 
broken  vows,  to  seek  such  compensation  as  the  law^s 
can  give  her.  It  is  also  for  the  public  interest,  that 
conduct  tending  to  consign  a  virtuous  woman  to 
celibacy,  should  meet  with  that  punishment  which 
may  prevent  it  from  becoming  common.  That 
delicacy  of  the  sex  which,  happily,  in  this  country 
gives  the  man  so  much  advantage  over  the  w^oman, 
in  the  intercourse  which  leads  to  matrimonial  en- 
gagements, requires  for  its  protection  and  continu- 
ance the  aid  of  the  laws.  When  it  shall  be  abused 
by  the  injustice  of  those  who  would  take  advantage 
of  it,  moral  justice,  as  well  as  public  policy,  dictates 
the  propriety  of  a  legal  indemnity. 

"This  is  not  a  new  doctrine.  As  early  as  the 
time  of  Lord  Holt,  it  was  announced,  as  the  com- 
mon law,  by  that  wise  and  learned  judge  and  his 
brethren,  that  a  breach  of  promise  of  marriage  was 
a  meritorious  cause  of  action;  and  although  the 
value  of  a  marriage  in  money  might  have  had  some 
influence  in  that  decision,  there  is  no  doubt  that  the 
loss  sustained  in  other  respects — the  w^ounded 
spirit,  the  unmerited  disgrace,  and  the  probable  soli- 
tude, which  would  be  the  consequences  of  desertion 
after  a  long  courtship) — were  considered  to  be  a» 

60 


PROMISES  TO  MARRY  AND  BREACH  OF  PROMISE 

legitimate  claims  for  pecuniary  compensation  as  the 
loss  of  reputation  by  slander,  or  the  wounded  pride 
in  slight  assaults  and  batteries. 

"Nor  is  this  English  law  become  obsolete.  It  is 
the  common  law  of  our  country,  always  recognized 
when  occasions  have  offered;  and  the  occasions 
have  not  been  unfrequent  since  the  adoption  of  our 
constitution." 

The  action  of  breach  of  promise  was  unknown 
to  the  Roman  law,  it  being  considered  contra  bonos 
mores.  Even  a  stipulation  fixing  beforehand  the 
sum  to  be  paid  as  a  penalty  in  case  of  non  perform- 
ance of  the  contract  could  not  be  enforced.  The 
only  penalty  attached  was  the  obligation  on  the 
party  who  had  broken  the  contract  to  return  any 
gifts  received  by  way  of  earnest,  and  the  infamy  of 
such  conduct  and  proceedings. 

In  Holland,  he  who  has  entered  into  espousals, 
according  to  the  law  of  that  country,  may,  at  the 
suit  of  the  other  party,  be  compelled  to  fulfil  his  en- 
gagement, by  imprisonment,  seizing  his  goods,  etc.; 
and  if  he  still  continue  obstinate,  the  judge  may,  by 
his  sentence,  declare  the  marriage  perfected,  the 
consent  given  in  the  espousals  being,  in  such  case, 
brought  down  fictione  juris  to  the  date  of  the  sen- 
tence. 

By  the  custom  of  Scotland,  all  promises  of 
marriage,  whether  private  or  more  solemn,  or  con- 
tained in  written  contracts,  may,  in  general,  be 
resiled  from,  which  proceeds  from  a  close  adherence 
to  the  rule  matrimonia  debent  esse  libera,  and  from 
the  consideration  of  the  fatal  consequences  which 
often  attend  forced  marriages. 

In  Spain,  a  promise  of  future  marriage  is  of 
such  force  that,  by  reason  of  it,  the  persons  who 
are  betrothed  are  bound  to  contract  matrimony 
afterwards,   and  are  prohibited  to  marry  with  an- 

61 


WOMAN  UNDER  THE  LAW 

other;  but  the  canonical  and  civil  impediments, 
which  hinder  and  dissolve  marriages,  hinder  and 
dissolve  espousals,  and  their  causes  are  of  ecclesias- 
tical cognizance. 

In  Germany,  promises  of  marriage  made  with 
certain  formalities  are  actionable;  but  it  seems  the 
modern  laws,  having  regard  to  the  tenderness  of  the 
marriage  ties  and  the  injustice  of  constraint,  have, 
in  many  places  there,  taken  away  the  means  of  en- 
forcing, by  action,  a  promise  to  marry. 

By  the  Frederickian  code,  compiled  for  the 
states  of  his  majesty  the  king  of  Prussia,  a  promise 
to  marry  might  be  enforced  by  imprisonment  and  a 
very  heavy  fine. 

By  the  code  of  Ferdinand  for  the  kingdom 
of  the  Two  Sicilies,  a  promise  of  marriage  pro- 
duced no  civil  obligation,  unless  made  before  an 
officer  of  state  in  the  manner  prescribed,  in  which 
case  an  action  might  be  maintained  for  the  recovery 
of  damages  in  case  of  non-performance. 


62 


CHAPTER  IV. 

MARRIAGE 

Our  law  considers  marriage  in  no  other  light 
than  as  a  civil  contract;  the  holiness  of  the  matri- 
monial state  is  left  entirely  to  the  ecclesiastical  law, 
and  such  contract  is  good  and  valid  if  the  parties 
were  at  the  time  of  making  it  willing  to  contract, 
able  to  contract,  and  actually  did  contract  in  the 
proper  forms  and  solemnities  required  by  law. 
Moreover,  it  is  a  contract  regulated  and  prescribed 
by  law  and  endowed  with  civil  consequences;  by 
which  a  man  and  woman,  capable  of  entering  into 
such  a  contract,  mutually  engage  w^ith  each  other 
to  live  their  whole  lives  together  in  the  state  of  union 
which  ought  to  exist  betw^een  a  husband  and  his 
wife.  The  act  of  marriage  having  been  once  accom- 
plished the  word  comes  afterw^ards  to  denote  the 
relation  itself.  Marriage,  therefore,  is  the  legal 
status  or  condition  of  husbands  and  wives,  just  as 
infancy  is  the  legal  status  of  persons  under  age.  The 
legal  conditions  of  a  marriage  are  precedent,  con- 
tinuing and  subsequent.  A  marriage  is  legal  when 
all  these  conditions  exist  or  are  performed;  invalid 
when  one  or  more  of  them  is  w^anting.  A  marriage 
is  legal  when  all  the  provisions  of  law  relating 
thereto  have  been  complied  with;  illegal  when  one 
or  more  of  them  has  been  omitted.  A  marriage,  if 
legal,  must  be  valid,  but  a  valid  marriage  may  not 
be  legal.  A  void  marriage  is  not  a  marriage  at  all; 
it  is  invalid  and  illegal.  A  voidable  marriage  is  one 
which  is  valid  until  duly  avoided,  or  void  until  duly 

63 


WOMEN  UNDER  THE  LAW 

confirmed;  thus  it  may  be  valid  or  invalid,  and  it  is 
illegal.  A  prohibited  marriage  is  a  valid  marriage 
in  respect  to  which  some  one  has  done  or  omitted 
something,  prohibited  or  commanded  by  law,  some- 
times under  penalty ;  it  is  simply  illegal. 

After  a  valid  marriage  between  them,  man  and 
woman  are  husband  and  w^ife,  and  their  offspring 
are  legitimate  or  legal  children.  This  most  bene- 
ficial institution  of  society,  as  it  is  termed  by  Kent, 
may,  therefore,  fall  into  three  great  divisions:  the 
formation  of  marriage;  the  marriage  state;  and  the 
dissolution  of  marriage. 

The  consummation  of  a  marriage  by  coition  is 
not  necessary  to  its  validity.  Matrimonial  cohabita- 
tion or  matrimonial  intercourse,  as  sometimes  dis- 
tinguished from  it,  is  not  required,  and  as  we  have 
already  seen,  it  is  against  the  policy  of  the  law  that 
the  validity  of  the  contract  of  marriage  or  its  effect 
upon  the  status  of  the  parties,  should  be  in  any  way 
affected  by  their  preliminary  or  collateral  agree- 
ments. The  status  of  the  parties  is  fixed  in  law  when 
the  marriage  contract  is  entered  into  in  the  manner 
prescribed  by  the  statutes  in  relation  to  solemniza- 
tion of  marriages. 

Any  promise  not  to  marry  at  all,  or  not  to 
marry  except  after  unreasonable  time  or  upon  un- 
reasonable conditions,  is  against  public  policy  and 
void.  Contracts,  or  clauses  in  contracts,  having  a 
tendency  to  prevent  the  marriage  of  some  person 
affected  are  frequently  held  to  be  void  as  against 
public  policy;  to  try  to  prevent  marriage  having 
been  called  the  blackest  of  political  sins.  The  effect 
of  the  contract,  or  clause,  may  depend  largely  upon 
its  form,  whether  it  is  a  condition  or  a  limitation, 
whether  it  is  a  condition  subsequent  or  precedent, 
whether  it  is  general  or  aimed  at  a  particular  mar- 
riage, whether  it  affects  realty  or  personalty  and 

64 


MARRIAGE 

what  provision  it  makes  in  case  of  its  breach.  The 
law  upon  these  subjects  cannot  be  said  to  be  well 
settled.  This  is  a  subject  that  has  been  fruitful  of 
discussion  and  indeed  of  conflicting  decisions,  caus- 
ing the  law  to  be  in  a  state  of  change  and  uncer- 
tainty, but  a  settlor  can  always  carry  out  his  inten- 
tions by  putting  the  condition  in  the  form  of  a 
limitation.  A  condition  against  a  particular  mar- 
riage, if  reasonable,  is  valid.  But  if  it  practically 
amounts  to  a  general  prohibition  against  marriage, 
it  is  treated  as  a  general  condition  and  is  void. 

A  member  of  a  society  of  Friends,  by  will, 
gave  a  legacy  of  the  remainder,  after  a  life  interest 
to  his  niece  during  her  single  life  and  forever  if  her 
conduct  should  be  orderly  and  she  remain  a  member 
of  the  society  of  Friends.  When  the  niece  arrived 
at  a  marriageable  age  there  were  but  five  or  six  un- 
married men  of  the  society  in  the  neighborhood  in 
which  she  lived,  and  during  the  life  estate  she  mar- 
ried a  man  not  a  member  of  the  society.  It  was 
held  that  the  condition  was  an  unreasonable  re- 
straint upon  marriage  and  void. 

A  condition  precedent  is  valid.  For  example, 
— The  testator  gave  a  portion  of  his  estate  to  his 
daughter  Rachel  on  her  attaining  the  age  of  twenty- 
eight  years,  or  day  of  marriage,  which  must  first 
happen,  provided  his  daughter  should  marry  with 
the  approbation  of  his  executors.  Rachel  married 
w^ithout  the  consent  of  the  executors.  It  was  de- 
cided that  the  above  provision  was  a  condition  pre- 
cedent, and  as  it  was  not  complied  with,  the  estate 
did  not  vest  in  Rachel. 

An  absolute  condition  subsequent  is  void.  For 
example, — A  deed  conveying  the  sole  property  in 
trust  for  the  sole  and  separate  use  of  the  feme 
covert,  contained  a  provision  that  in  case  the  hus- 
band should  survive  the  wife,   he  and  his  assigns 

65 


WOMAN  UNDER  THE  LAW 

should  have  the  rents,  issues  and  profits  during  his 
natural  life,  only  to  and  for  his  own  use  and  benefit 
provided  he  should  continue  unmarried  after  the 
death  of  his  wife  then  living  and  from  and  imme- 
diately after  his  decease,  then  over.  Held,  that  this 
proviso  being  a  general  restraint  upon  marriage  by 
means  of  the  condition  subsequent,  was  void  and 
the  husband's  life  estate  was  not  terminated  by  his 
second  marriage. 

A  condition  is  valid  as  to  personalty  if  there  be 
a  gift  over,  otherwise  void.  A  condition  subsequent 
is  good  as  to  real  estate  if  the  condition  is  not  in- 
tended to  prevent  marriage,  but  to  provide  for  the 
grantee  until  marriage. 

It  should  be  borne  in  mind  that  there  are  four 
essential  elements  to  a  marriage. 

First :  Each  of  the  parties  must  have  the  capac- 
ity to  marry  the  other.  Thus  a  man  may  not  be 
able  to  marry  a  certain  woman  either  because  he  is 
not  old  enough  to  marry  anyone,  or  because  she  is 
too  nearly  related  to  him  or  is  not  of  the  same  color. 

Second:  The  parties  must  mutually  agree 
to  be  thenceforth  husband  and  w^ife.  No  one  can  be 
married  w^ithout  his  or  her  consent  no  matter  how 
competent  the  parties  may  be  or  what  formalities 
they  go  through. 

Third:  The  parties  must  go  through  certain 
formalities,  sometimes  religious  and  sometimes 
civil.  That  is  to  say,  the  state,  for  the  protection  of 
the  people,  generally  prescribes  formalities  and  does 
not  leave  marriage  to  be  formed  as  an  ordinary  part- 
nership. 

Fourth:  The  parties  must  become  husband 
and  w^ife  in  fact,  must  assume  marriage  rights,  duties 
and  obligations.  In  the  famous  Sharon  divorce  case 
which  was  tried  recently  in  the  courts  of  California, 

66 


MARRIAGE 

no  marriage  was  found  because  the  parties  had 
simply  lived  together  as  man  and  mistress. 

In  Massachusetts,  from  very  early  times,  the 
requisites  of  a  valid  marriage, have  been  regulated 
by  statutes  of  the  Colony,  Province  and  Common- 
wealth; the  canon  law  was  never  adopted;  and  it 
was  never  received  here  as  common  law  that  parties 
could  by  their  own  contract  without  the  presence  of 
an  officiating  clergyman  or  minister  take  each  other 
as  husband  and  wife  and  so  marry  themselves.  This 
clearly  appears  in  tracing  the  history  of  the  legisla- 
tion upon  the  subject;  the  whole  of  which  whether 
repealed  or  unrepealed,  is  by  a  familiar  rule,  to  be 
considered  in  ascertaining  the  intention  of  the  Legis- 
lature. 

The  requisite  of  solemnization  before  a  magis- 
trate and  other  authorized  persons  is  essential  to 
constitute  a  valid  marriage,  which  had  been  clearly 
implied  in  earlier  statutes,  and  was  distinctly  ex- 
pressed in  the  following  Massachusetts  statute  of 
1646:  "As  the  ordinance  of  marriage  is  honorable 
amongst  all,  so  should  it  be  accordingly  solemnized. 
It  is,  therefore,  ordered  by  this  court,  on  authority 
thereof,  that  no  person  whatsoever  in  this  jurisdic- 
tion shall  join  any  persons  together  in  marriage,  but 
the  magistrate  or  such  others  as  the  general  court  or 
court  of  assistance  shall  authorize.  In  such  places 
where  no  magistrate  is  near,  persons  shall  not  join 
themselves  in  marriage  but  before  some  magistrate 
or  person  authorized  as  aforesaid.  Nor  shall  any 
magistrate  join  any  persons  together  in  marriage 
or  suffer  them  to  be  joined  together  in  marriage  in 
their  presence  before  the  parties  to  be  married  have 
been  published  according  to  law." 

The  Massachusetts  statute  of  I  786,  chapter  3, 
manifested  no  intention  to  change  the  law  in  this 
respect;     while   it   expressly   repealed     all     former 

67 


WOMEN  UNDER  THE  LAW 

laws  relating  to  the  solemnization  of  mar- 
riages, it  substantially  re-enacted  many  of  their 
provisions.  It  also  contained  a  new  provision 
wherein  marriages  w^hich  had  been  or  should  be 
had  and  solemnized  among  Quakers  or  Friends 
in  the  manner  and  form  used  and  practised  in  their 
societies,  to  be  good  and  valid  in  law  and  requiring 
the  clerk  or  keeper  of  the  records  of  the  meeting  at 
which  such  marriage  should  be  had  and  solemnized, 
to  make  return  thereof. 

This  section.  Chief  Justice  Parsons  tells  us, 
was  enacted  in  consequence  of  the  general  opinion 
of  lawyers  that  such  marriages  were  void  before. 

Until  the  changes  in  the  form  of  the  statutes  it 
has  always  been  assumed  in  Massachusetts  and  in 
the  state  of  Maine,  which  was  originally  a  part 
thereof,  that  except  in  the  single  case  of  Quakers  or 
Friends  a  marriage  w^hich  is  shown  not  to  have  been 
solemnized  before  any  third  person  acting  or  be- 
lieved by  any  of  the  parties  to  be  acting  as  magis- 
trate or  minister,  is  not  lawful  or  valid  for  any  pur- 
pose. 

The  absence  of  one  or  more  of  the  foregoing 
elements  may  not  render  the  marriage  invalid,  and 
as  a  general  rule,  absence  of  any  formality  what- 
ever and  of  any  consummation  of  the  marriage  will 
not  prevent  the  parties  from  being  husband  and 
wife  as  we  have  seen,  whatever  other  results  may 
be  entailed  upon  them.  For  a  marriage  which  is 
valid,  may  be  invalid  in  certain  respects,  or  it  may 
be  a  prohibited  or  voidable  marriage. 

Sometimes  the  marriage  is  recognized  but  the 
parties  are  punished  for  marrying,  or  for  marrying 
in  the  way  pursued ;  as  in  Maryland,  where  a  mar- 
riage without  license  or  publication  of  banns  is  valid 
but  the  parties  are  fined  $100.00  each.  Sometimes 
the  marriage  will  not  be  recognized  but  there  is  no 

68 


MARRIAGE 

penalty;  as  in  Massachusetts,  where  if  a  woman 
marries  a  second  time  when  her  husband  has  been 
absent  and  unheard  of  for  seven  years,  if  he  be  not 
dead  at  the  time  of  the  second  marriage,  it  is  void, 
but  she  is  not  punishable  for  bigamy;  and  to  illus- 
trate more  fully  the  importance  of  these  distinc- 
tions, the  marriage  of  a  minor  without  the  consent 
of  his  parents,  was  in  England  under  Lord  Hard- 
w^ick's  Act,  void;  in  Maryland,  simply  prohibited. 
A  legal  marriage  is  one  with  respect  to  which  all 
the  provisions  of  the  law^  have  been  complied  with ; 
but  there  are  many  laws  relating  to  marriages  which 
may  be  disregarded  without  preventing  the  parties 
from  becoming  by  the  marriage,  completely  hus- 
band and  wife.  Thus  a  license  to  marry  is  usually 
required  by  law,  but  failure  to  secure  a  license  w^ill 
not  prevent  the  parties  from  becoming  husband  and 
wife  if  they  are  in  all  other  respects  properly  mar- 
ried. Any  marriage  contrary  to  law  in  any  respect 
is  in  that  respect  illegal,  and  any  marriage  by  which 
the  parties  have  become  completely  husband  and 
wife  is  valid. 

A  marriage  per  se  and  without  any  judgment 
or  decree,  invalid  for  all  intents  and  purposes  no 
matter  in  what  proceeding  or  in  what  court  the 
question  arises,  is  called  a  void  marriage.  Thus,  if 
a  man,  being  already  married,  marries  another 
woman,  his  marriage  is  invalid  to  all  intents  and 
purposes  without  any  judgment  or  decree,  whether 
in  a  proceeding  betw^een  the  parties  to  settle  the 
question,  or  in  a  proceeding  after  his  death  in  which 
his  issue  claim  as  legitimate.  A  marriage  which  is 
valid  until  avoided  is  called  a  voidable  marriage. 

A  marriage  may  be  valid  to  all  intents  and  pur- 
poses unless  and  until  duly  avoided,  when  it  be- 
comes void  ab  initio.  A  marriage  may  be  void  for 
all  intents  and  purposes  unless  and  until  duly  con- 

69 


WOMAN  UNDER  THE  LAW 

firmed  when  it  becomes  valid  ab  initio.  To  this 
class  belong  marriages  which  for  incompleteness  or 
unreality  of  consent  are  void  as  lacking  the  essen- 
tials of  a  contract;  these  are  inchoate  and  complete 
rather  than  voidable  marriages.  In  North  Carolina, 
Alabama  and  Maryland,  a  marriage  invalid  for  want 
of  age  may  be  avoided  or  confirmed  with  or  without 
judicial  proceedings. 

It  is,  therefore,  very  important  to  have  some 
means  of  determining  to  w^hich  class  of  marriages  a 
given  imperfect  or  illegal  marriage  belongs,  and 
the  matter  being  complicated,  a  lawyer  should  be 
consulted  in  all  cases.  Every  woman  may  bear  in 
mind,  however,  that  in  determining  the  validity  of 
any  marriage,  it  is  necessary  to  decide  first,  by  the 
laws  of  what  state  or  country  its  validity  is  to  be 
tested.  The  capacity  of  the  parties  is  controlled, 
according  to  different  views,  by  the  law  of  the  place 
of  the  parties'  domicile,  or  of  the  place  where  the 
marriage  ceremony  is  performed;  and  the  necessity 
and  sufficiency  of  the  ceremonies  and  consumma- 
tion by  the  law^  of  the  place  where  they  are  married. 

The  law  as  to  consent  is  the  same  everywhere. 
The  mental  capacity  necessary  to  enable  a  party  to 
marry  (or  to  confirm  his  marriage),  according  to 
w^ell-settled  law,  is  such  as  renders  him  capable  of 
understanding  the  nature  of  the  act  and  its  conse- 
quences. 

This  is  a  true  statement  of  the  law^,  but  in 
everyday  domestic  life  as  we  see  it,  if  an  under- 
standing of  the  consequences  of  matrimony  is  a 
true  standard  of  judging  mental  capacity,  two- 
thirds  of  all  the  married  persons  on  the  earth  should 
be  adjudged  insane.  Most  persons  about  to  marry 
fail  to  realize  that  matrimony  is  a  duty  and  a  disci- 
pline as  well  as  a  delight.  The  principle  of  repro- 
duction stands  next  in  importance  to  its  elder  born 

70 


MARRIAGE 

correlative,  self-preservation,  and  is  equally  a  fun- 
damental law  of  existence.  It  is  the  blessing  which 
tempered  with  mercy  the  justice  of  expulsion  from 
Paradise.  It  was  impressed  upon  the  human  crea- 
tion by  a  beneficent  Providence,  to  multiply  the 
images  of  himself,  and  thus  to  promote  his  own 
glory  and  the  happiness  of  his  creatures.  Not  man 
alone,  but  the  whole  animal  and  vegetable  kingdom 
are  under  an  imperious  necessity  to  obey  its  man- 
dates. 

From  the  lord  of  the  forest  to  the  monster  of 
the  deep — from  the  sublety  of  the  serpent  to  the 
innocence  of  the  dove — from  the  elastic  embrace 
of  the  mountain  kalmia  to  the  descending  fructifica- 
tion of  the  lily  of  the  plain,  all  nature  bows  submis- 
sively to  this  primeval  law.  Even  the  flow^ers  which 
perfume  the  air  with  their  fragrance,  and  decorate 
the  forests  and  fields  with  their  hues,  arc  but  cur- 
tains to  the  nuptial  bed.  The  holy  state  of  matri- 
mony was  ordained  by  Almighty  God  in  Paradise, 
before  the  fall  of  man,  signifying  to  us  that  mys- 
tical union  which  is  between  Christ  and  his  Church, 
but  lust,  money  and  w^ealth  are  too  often  the  moving 
causes  that  lead  to  matrimonial  alliances,  w^ith  Satan 
as  the  bell  cow  and  to  the  tune  of  the  "Devil's 
Dream.  " 

The  want  of  capacity  to  marry  must  exist  at 
the  time  of  marriage;  paroxysms  of  insanity  before 
the  marriage  or  the  development  thereof  afterwards, 
w^ill  not  suffice.  It  would  be  a  hard  rule  indeed  that 
would  permit  a  man  who  has  married  a  woman  w^ho 
later  in  life  becomes  insane  to  put  her  aw^ay  on  ac- 
count of  her  inexpressibly  sad  misfortune.  It  is 
to  the  credit  of  our  common  humanity  that  there 
cannot  be  found  in  all  the  range  of  judicial  proceed- 
ings, a  single  case  that  held  that  insanity  is  or  could 
be  a  cause  for  divorce. 

71 


WOMAN  UNDER  THE  LAW 

The  marriage  of  an  insane  person  during  a 
lucid  interval,  is,  in  the  absence  of  statute,  valid; 
but  the  burden  of  proof  lies  on  the  party  alleging 
the  lucid  interval.  A  person  attacked  with  delirium 
tremens  may  have  a  lucid  interval  and  may  contract 
a  valid  marriage  during  such  lucid  interval.  Mere 
intoxication  is  not  sufficient  to  render  a  marriage 
invalid;  but  if  it  has  caused  complete  unconscious- 
ness or  madness,  or  has  been  produced  by  fraud,  the 
marriage  is  void. 

Deaf  and  dumb  persons  are  not  idiots  in  law 
and  are,  therefore,  mentally  competent  to  marry. 
The  performance  of  the  marriage  ceremony  and 
continued  cohabitation  "  'till  death"  with  a  person 
of  unsound  mind  will  not  constitute  a  legal  marriage 
or  give  claim  to  dow^er  or  curtesy  in  his  or  her 
estate. 

Impotence  is  no  impediment  to  marriage  in 
the  absence  of  ecclesiastical  jurisdiction.  Under 
the  ecclesiastical  law  impotence  rendered  a  marriage 
voidable  and  in  most  states  there  is  some  statutory 
provision  rendering  impotence  an  impediment  to 
marriage  or  cause  for  divorce.  No  rule  already  laid 
down  and  statute  declaring  a  marriage  void  for  im- 
potence would  be  held  to  render  it  voidable  only  as 
under  the  ecclesiastical  law,  and  likewise  statutes 
declaring  impotence  a  cause  for  divorce  w^ill  be 
construed  to  render  it  a  cause  for  nullity. 

The  marriage  of  a  man  and  woman  related  by 
blood  or  by  marriage  w^ithin  certain  named  degrees 
may  be  under  the  criminal  law^  incest,  under  the 
ecclesiastical  law,  voidable,  or  by  express  statute, 
void.  This  disability  is  based  remotely  on  the  laws 
(so  called)  of  Moses  as  contained  in  the  eighteenth 
chapter  of  Leviticus.  Marriages  defective  for  this 
cause  are,  as  a  general  rule,  valid  unless  duly  avoided 
by  a  nullity  suit.    Local  statutes  should  be  consulted 

72 


MARRIAGE 

in  this  as  in  all  other  matters  of  statutory  law.  No- 
where in  this  country  is  marriage  with  a  deceased 
wife's  sister  invalid  except  in  Virginia. 

A  slave  cannot  marry  because  he  cannot  make 
a  valid  contract,  and  because  the  duties  of  a  slave 
are  inconsistent  with  those  of  the  husband  or  M^fe; 
also  because  a  slave  is  property,  and  being  property, 
has  not  the  legal  capacity  to  make  a  contract,  and  is 
not  entitled  to  the  rights  or  subjected  to  the  liabili- 
ties incident  thereto. 

In  many  states  the  marriage  of  persons  of 
different  race,  as  whites  and  negroes,  or  whites  and 
Indians,  is  forbidden  and  is  made  a  crime  (misceg- 
enation), and  the  statute  may  also  render  such  mar- 
riages void.  Such  statutes  are  constitutional  and 
do  not  conflict  with  the  fourteenth  amendment,  or 
civil  rights  bill. 

Owing  to  the  great  intermingling  of  the  races, 
it  is  often  difficult  to  determine  whether  a  person  is 
a  white  or  negro.  This  depends  upon  the  term  of 
the  statute.  A  mulatto  is  not  usually  a  negro,  but 
is  the  child  of  a  negro  and  a  white  person;  not  the 
child  of  a  mulatto  and  a  white  person;  and  it  is  held 
by  the  Virginia  Courts  that  where  the  negro  must 
have  one-fourth  negro  blood,  one  drop  less  than 
one-fourth  will  make  him  white. 

A  man  cannot  have  at  the  same  time  two 
wives,  or  a  woman  two  husbands;  but  one  w^ho  has 
married  once  cannot  marry  again  unless  such  first 
marriage  is  void,  or  voidable,  and  has  been  duly 
avoided;  or,  if  valid,  has  been  dissolved  by  death 
or  divorce.  Such  a  second  marriage  would  be  both 
invalid  and  illegal.  To  illustrate, — the  marriage 
of  a  woman  with  a  man  whose  wife  by  a  former 
marriage  is  still  living  and  undivorced,  is  void  and 
her  subsequent  marriage  with  another  is  valid 
although  her  husband  by  such  void  marriage  is  liv- 

73 


WOMAN  UNDER  THE  LAW 

ing;  again,  a  woman  on  discovering  she  had  mar- 
ried an  impotent,  could  not,  without  having  such 
marriage  decreed  void,  marry  anyone  else. 

In  most  of  the  states,  statutes  provide  that 
where  a  party  has  been  absent  and  unheard  of  or 
beyond  the  seas  for  five  or  seven  years,  the  other 
party  shall  not  be  punishable  for  marrying  again, 
but  such  statutes  would  not  apply  to  cases  where 
the  party  marries  a  second  time  knowing  the 
absent  party  is  living ;  nor  do  they  render  the  second 
marriage  valid  if  the  first  really  existed,  though  in 
some  states  the  statutes  expressly  state  that  a  second 
marriage  must  be  declared  void  and  thus  made  void- 
able simply.  In  general,  life  is  presumed  to  con- 
tinue for  seven  years  after  the  party  has  disap- 
peared, but  if  a  party  supposing  his  wife  dead  mar- 
ries w^ithin  seven  years  and  the  w^ife  is  never  heard 
of  afterwards,  it  will  generally  be  presumed  not 
only  that  she  is  dead  but  that  she  died  before  he  mar- 
ried again.  If  a  second  marriage  is  had,  it  is  not 
voidable  merely,  even  where  a  statute  provides  that 
it  may  be  decreed  null,  but  no  decree  is  necessary, 
and  it  is  void  ab  initio.  Though  a  man  marries  never 
so  often,  he  can  have  but  one  lawful  wife  living.  So 
long  as  she  is  living  and  the  marriage  bond  remain 
in  full  force,  all  his  subsequent  marriages  w^hether 
meretricious,  or  founded  in  mistake  and  at  the  time 
supposed  to  be  lawful,  are  utterly  null  and  void. 

No  decree  of  divorce  is  necessary  to  annul  such 
subsequent  marriage,  for  it  never  had  any  legal 
existence.  Such  w^as  clearly  the  common  law.  This 
is  not  altered  by  the  fact  that  statutes  provide  for 
actions  to  annul  such  marriages.  Courts  w^ill  avoid, 
if  possible,  an  attitude  which  would  give  a  person 
two  spouses  at  the  same  time. 

In  Massachusetts  when  a  marriage  is  dissolved 
on  account  of  the  prior  marriage  of  either  party, 

74 


MARRIAGE 


and  it  appears  that  the  second  marriage  was  con- 
tracted in  good  faith  and  with  the  full  belief  of  the 
parties  that  the  former  husband  or  wife  was  dead, 
that  fact  should  be  stated  in  the  decree  of  divorce 
or  nullity;  and  the  issue  of  the  second  marriage 
born  or  begotten  before  the  commencement  of  the 
suit,  shall  be  deemed  to  be  the  legitimate  issue  of 
the  parent  capable  of  contracting  the  marriage.  In 
general,  the  innocence  of  one  of  the  parties  will 
make  the  second  marriage  none  the  less  void  though 
by  the  Spanish  and  civil  law  a  woman  who  is  de- 
ceived into  a  marriage  with  a  married  man  has  the 
rights  of  a  wife  and  her  children  are  legitimate. 

In  Spanish  law,  the  consort  who  enters  into 
matrimony  in  ignorance  that  her  husband  has  a 
partner  or  wife  living  (or  of  other  impediment  to 
the  marriage)  is  in  law  not  only  innocent  of  crime 
but  has  all  the  rights,  incidents  and  privileges  per- 
taining to  lawful  marriage;  and  these  are  continued 
as  long  as  there  is  ignorance  of  the  other  or  former 
marriage  or  other  impediment  to  the  second  mar- 
riage; and  in  some  states  she  has  been  allowed 
alimony. 

In  a  New  York  case,  A  who  had  married  B, 
married  C  at  eleven  o'clock  the  same  day  that  he 
was  divorced  from  B,  the  divorce  from  B  not  having 
been  granted  until  2  o'clock,  but  A  and  C  having 
acted  in  good  faith,  the  marriage  was  held  valid. 

When  a  party  who  is  already  married  goes 
through  the  form  of,  or  contracts  a  second  marriage, 
he  or  she,  or  both  parties,  may  be  guilty  of  the 
crime  of  bigamy  or  polygamy.  Section  5253  of  the 
Revised  Statutes  of  the  United  States,  omitting  its 
exceptions,  is  as  follows:  "Every  person  having  a 
husband  or  wife  living  who  marries  another  whether 
married  or  single,  in  the  territory  over  which  the 
United  States  have  exclusive  jurisdiction,  is  guilty 

75 


WOMAN  UNDER  THE  LAW 

of  bigamy  and  shall  be  punished  by  a  fine  of  not 
more  than  $500.00  and  by  imprisonment  for  a  term 
of  not  more  than  five  years."  Bigamy  was  not  a 
felony  at  common  law;  indeed,  according  to  that 
law,  it  was  not  a  crime  of  w^hich  the  ordinary  com- 
mon law  tribunal  took  cognizance  at  all;  it  was 
originally  considered  of  ecclesiastical  cognizance 
exclusively.  Whether  the  English  statute  of  1  604 
is  in  force  in  the  United  States  is  doubtful;  it  is  in 
Maryland,  but  not  in  Pennsylvania.  In  prosecu- 
tions for  bigamy,  a  marriage  in  fact  must  be  proved 
and  may  be  proved  by  cohabitation  and  the  con- 
fessions of  the  party,  but  the  testimony  to  justify 
conviction  must  be  clear,  strong  and  convincing. 
The  indispensable  evidence  to  support  the  prosecu- 
tion for  bigamy,  is,  that  the  defendant  had  a  former 
husband  or  wife  living;  a  subsisting,  valid,  prior 
marriage  subjecting  to  its  duties  and  conferring  its 
rights.  If,  therefore,  the  first  marriage  is  void,  the 
offense  has  not  been  committed,  but  if  it  is  merely 
voidable,  contracted  under  disabilities  or  impedi- 
ments which  render  it  capable  of  confirmation  or 
avoidance,  as  the  party  may  elect,  it  is  a  marriage  in 
fact  until  avoided,  and  the  second  marriage  while  it 
remains  a  marriage  in  fact,  is  criminal.  Ignorance 
of  the  fact  of  the  other's  marriage  may  excuse  the 
unmarried  party,  but,  as  a  rule,  ignorantia  legis 
neminem  excusat.  A  decree  nisi  does  not  dissolve 
a  marriage,  and  the  parties  cannot  marry  again  until 
it  has  been  made  absolute.  In  Massachusetts  a  de- 
cree of  divorce  nisi  under  the  statute  of  I  867  w^as 
granted,  which  by  its  terms,  was  to  be  made  absolute 
on  notice  after  six  months  publication  "unless  suf- 
ficient cause  to  the  contrary  appear."  Within  six 
months  the  libellant,  believing  that  he  had  obtained 
a  divorce  and  was  at  liberty  to  marry  again,  married 
another  woman  and  had  sexual  intercourse  with 

76 


MARRIAGE 

her.  It  was  held  that  the  second  marriage  was 
illegal  and  void  and  the  libellant  was  not  entitled 
to  have  the  decree  of  divorce  made  absolute.  If 
there  has  been  any  appeal  from  a  decree  of  divorce 
and  the  appeal  is  sustained,  an  intervening  marriage 
of  either  party  would  be  void,  and  so  would  a  mar- 
riage solemnized  on  the  day  before  the  entry  of  the 
decree  absolute  of  a  decree  nisi  in  favor  of  one  of 
the  parties.  An  absolute  divorce  dissolves  the  rela- 
tion of  husband  and  w^ife,  and  all  rights  and  obliga- 
tions dependent  upon  the  existence  of  the  marriage 
relation  are  extinguished.  The  parties  are  no  longer 
husband  and  wife  but  are  permitted  to  marry  at 
pleasure. 

A  limited  divorce,  or  a  divorce  a  mensa  et 
thoro,  does  not  dissolve  the  relation  of  husband  and 
wife  and  neither  can  marry  again,  but  such  second 
marriage,  though  invalid,  does  not  constitute 
bigamy.  A  prohibition  against  a  marriage  after  a 
divorce  of  (generally  only)  the  guilty  party  for  a 
certain  time,  or  except  on  certain  conditions,  is 
sometimes  contained  in  a  statute,  as  in  New  York, 
and  is  sometimes  entered  by  a  court  as  a  part  of  the 
decree  of  divorce  under  the  authority  of  the  statute, 
as  in  Maryland,  although  in  the  latter  state  it  is 
now  very  unusual  for  such  a  prohibition  to  be  put 
into  the  decree.  But  no  such  prohibition,  by  a 
court,  is  valid  unless  it  is  authorized  by  statute. 
There  is  no  authority  in  the  court  to  impose  any 
restraint  upon  a  second  marriage  when  a  dissolution 
from  the  bonds  of  matrimony  is  adjudged.  It  is 
usually  said  that  a  divorce  valid  where  granted  is 
valid  everywhere,  but  such  a  rule  is  neither  strictly 
correct  nor  of  much  assistance.  The  validity  of  the 
divorce  may  be  limited  to  a  state  where  it  is  granted, 
if  granted  in  a  mode  which  neither  law  nor  comity 
requires  other  states  to  recognize;  or  it  may  extend 

77 


WOMAN  UNDER  THE  LAW 

throughout  the  United  States  if  granted  in  one  of 
the  states  by  virtue  of  the  "full  faith  and  credit" 
clause  of  the  constitution;  or  it  may  extend  every- 
where by  comity  and  international  law.  A  divorce 
may  be  valid  as  to  one  party  and  not  as  to  the  other, 
and  it  may  destroy  the  marriage  status  and  yet  not 
affect  certain  property  or  personal  right  of  the 
parties.  The  following  general  rules  may  be  stated : 
( 1  )  A  divorce  granted  by  a  divorce  court  in 
due  conformity  with  the  law  of  such  court  is  valid 
in  the  state  where  it  is  granted. 

(2)  Such  a  divorce,  if  both  parties  are  domi- 
ciled in  such  state,  or  if  only  one  of  them  is  so 
domiciled  and  the  other  is  duly  served  with  process 
in  such  state  or  voluntarily  appears  in  the  suit,  is 
valid  throughout  the  United  States  by  virtue  of  the 
United  States  Constitution  and  practically  every- 
where by  the  principles  of  international  law. 

(3)  Such  a  divorce,  if  only  one  of  the  parties 
is  domiciled  in  such  state,  and  the  other,  though  not 
duly  served  with  process,  had  an  actual  notice  of 
the  suit  and  an  opportunity  to  defend  it,  would 
probably  be  held  valid  everywhere  by  comity  as  no 
injustice  w^ould  be  done. 

(4)  Such  a  divorce,  if  only  one  of  the  parties 
is  domiciled  in  such  state,  and  the  other  has  no  act- 
ual notice  at  all  of  the  suit,  but  a  mere  notice  by 
publication,  would  probably  be  held  valid  in  such 
other  states,  and  by  their  legislators  or  courts  w^hich 
have  adopted  the  policy  or  recognize  the  justice 
of  divorce  granted  on  constructive  notice,  but  not 
such  other  states  as  have  not  adopted  such  policy 
but  regard  it  as  contrary  to  natural  justice  except 
so  far  as  this  is  necessary  under  the  United  States 
Constitution.  That  is  to  say, — except  as  to  the 
status  of  the  party  domiciled  and  the  property 
situate  in  the  state  w^here  the  divorce  was  granted. 

78 


MARRIAGE 

(5)  Such  a  divorce,  if  neither  of  the  parties 
were  domiciled  in  the  state  granting  the  divorce, 
has  no  extra-territorial  validity  although  both  parties 
submitted  themselves  to  the  jurisdiction  of  the 
court. 

These  rules,  however,  have  not  taken  the 
effect  of  fraud  into  consideration.  A  statute  pro- 
viding in  general  terms  that  the  guilty  party  shall 
not  marry  after  divorce  applies  only  to  divorces 
granted  within  the  state.  But  whether  the  prohibi- 
tion has  any  effect  out  of  the  state  in  which  the 
divorce  is  granted  has  been  much  disputed.  In 
most  states  such  a  prohibition  is  regarded  as  a 
penalty.  In  Massachusetts  it  has  been  held  that  a 
person  against  whom  a  divorce  has  been  obtained 
for  adultery  in  another  state  by  the  law  of  which  in 
such  a  case  both  parties  may  marry  again,  may  con- 
tract a  valid  marriage  in  this  Commonwealth.  A 
New  Yorker,  prohibited  by  the  New  York  court, 
has  but  to  step  into  New  Jersey  to  marry  and  the 
New  York  courts  will  hold  the  marriage  valid. 

Mutual  consent  is  the  very  essence  of  the  mar- 
riage, and  parties  cannot  become  husband  and  wife 
without  it.  A  mere  marriage  ceremony  cannot 
make  a  man  and  woman  husband  and  wife  as  we 
have  seen ;  to  illustrate, — a  marriage  ceremony 
though  actually  and  legally  performed  when  it  was 
in  jest  and  not  intended  to  be  a  contract  of  marriage, 
and  it  was  so  understood  at  the  time  by  both  parties 
and  is  so  considered  and  treated  by  them,  is  not  a 
contract  of  marriage.  Intention  is  necessary  as  in 
every  other  contract;  or,  if  they  go  through  the 
forms  of  marriage  supposing  them  to  be  prelimi- 
naries, it  is  no  marriage;  nor  can  sexual  intercourse 
make  a  marriage,  the  parties  knowing  or  intending 
it  to  be  unlawful.  It  is  indispensable  to  marriage 
whether  under  the  statute  or  at  common  law  that 

79 


WOMAN  UNDER  THE  LAW 

the  parties  consent  to  be  husband  and  wife,  present- 
ly, and  though  cohabitation  following  an  engage- 
ment is  evidence  of  such  consent,  it  is  not  conclu- 
sive but  only  prima  facie  evidence  of  it  and  as  such 
open  to  rebuttal  by  contra-proof,  though  at  the  time 
of  the  marriage  ceremony  or  consummation  mutual 
consent  is  wanting  because  one  of  the  parties  is 
mentally  incompetent,  or  is  not  real  because  of  er- 
ror, fraud  or  duress,  and  the  marriage  is  therefore 
void.  The  necessary  consent  may  be  subsequently 
given  w^hen  the  party  becomes  sane,  or  later  regains 
his  freedom  or  discovers  the  deception  or  mistake, 
and  the  marriage  may  thus  be  confirmed.  Consent 
may  be  absent  owing  to  error,  fraud  or  duress. 

The  mistake  of  person,  but  nothing  else,  affects 
the  validity  of  the  marriage.  Thus,  if  a  man  and 
w^oman  go  through  a  marriage  ceremony  in  mas- 
querade, one  supposing  the  other  to  be  some  one 
else,  it  is  no  marriage;  although  novelists  and 
dramatists  give  validity  to  marriage  in  masquerade 
w^here  the  parties  w^ere  entirely  mistaken  as  to  the 
person  w^ith  whom  they  are  united. 

If  a  rogue,  by  pretending  to  be  a  known 
respectable  man  and  assuming  his  name  induced  a 
woman  to  go  through  the  ceremony  of  marriage, 
there  would  be  no  marriage,  though  this  as  all  other 
mistakes  induced  by  the  other  party,  belongs  rather 
to  the  subject  of  fraud.  Mistakes  of  character,  for- 
tune, and  health  make  no  difference,  for  the  parties 
take  each  other  for  better  or  for  worse.  Nothing 
could  be  more  dangerous  than  to  allow  those  who 
have  agreed  to  take  each  other  in  these  terms  to  be 
permitted  to  say  that  one  of  the  parties  is  worse  than 
expected.  Deceit  or  false  representations  which 
induce  consent,  especially  where  the  deceived  party 
is  weak  in  mind  or  young  and  more  certainly  if  there 

80 


MARRIAGE 

has  been  no  consummation,  will  invalidate  a  mar- 
riage. 

In  a  Michigan  case,  an  old  man  who  had  lost 
his  eyesight  and  was  more  or  less  deaf  and  other- 
w^ise  broken,  w^as  put  under  the  influence  of  liquor 
and  drugs  and  induced  to  marry  a  woman  he  had 
no  affection  for,  but  who  wanted  his  money.  The 
marriage  was  annulled.  A  girl  of  fifteen  w^as  in- 
veigled into  marriage  by  her  father's  coachman  who 
obtained  both  her  consent  and  the  celebration  of 
the  marriage  by  falsehood  and  fraud,  and  where 
she  repudiated  the  marriage  before  consummation. 
It  was  held  void.  So  also  where  a  man  induced  a 
woman  to  go  through  a  regular  marriage  service 
pretending  it  to  be  a  mere  betrothal;  so  where  a 
felon  by  assuming  a  false  name  and  character  in- 
duces a  woman  to  marry  him  and  she  repudiates  the 
marriage  before  consummation ;  so,  where  a  party 
is  physically  incompetent  and  conceals  the  fact;  or 
a  woman  who  is  pregnant  by  another  man  conceals 
it;  but  it  is  not  fraud  if  the  pregnancy  is  by  the  man 
whom  she  marries,  nor  if  he  has  been  put  on  his 
guard  as  to  her  virtue  by  ante-nuptial  connection 
with  her.  On  the  other  hand,  mere  ante-nuptial 
unchastity,  concealed,  is  no  fraud  except  by  statute, 
nor  are  false  representations  as  to  character,  health 
or  fortune,  nor  false  pretenses  of  affection,  nor 
marrying  to  escape  punishment  with  the  intention 
to  immediately  desert.  Nor  the  mere  assumption 
of  a  false  name.  A  conspiracy  by  which  one  of  the 
parties  with  the  help  of  others,  brings  about  a  mar- 
riage for  an  ulterior  object,  may  be  in  this  sense 
fraud,  but  the  fraud  must  be  upon  one  of  the  parties. 
Third  parties  cannot  complain.  No  more  startling 
or  absurd  proposition  can  be  conceived  than  that  a 
marriage  legal  in  form,  acquiesced  in  and  held 
obligatory  by  the  parties,  and  recognized  as  valid 

81 


WOMAN  UNDER  THE  LAW 

by  law,  might  be  annulled  at  the  insistence  of  a 
third  person,  for  any  cause  whatever. 

If  a  party  marries  under  duress  the  marriage  is 
invalid.  It  would  seem  to  require  no  argument  to 
show  that  a  consent  given  under  actual  duress,  ob- 
tained by  force,  is  no  consent;  and  edthough  the 
form  of  marriage  has  been  observed,  the  essence 
of  the  contract  is  wanting.  It  would  not  suffice  that 
he  married  unwillingly;  he  must  have  been  forced 
by  fear  of  bodily  harm,  but  it  is  not  duress  when  a 
man  marries  a  woman  after  seducing  her,  to  avoid 
a  legal  prosecution.  Marriage  contracted  through 
fear  of  imprisonment  is  not  void,  when  the  fear  was 
not  imposed  as  an  inducement  to  the  marriage,  but 
arose  from  the  arrest  and  prosecution  of  the  party 
for  bastardy.  Duress  cannot  be  predicated  of  com- 
pulsion to  discharge  a  legal  duty.  To  illustrate:  — 
A  promises  to  pay  B  one  hundred  dollars  and  failing 
to  keep  his  promises  B  sues  him  for  breach  thereof 
and  compels  him  to  pay.  That  is  compulsion  but 
it  is  not  duress.  A  valid  marriage  contract  may  be 
expressed  in  w^ords,  w^ritten  or  oral,  or  in  signs,  or  it 
may  be  implied  from  conduct.  Letters  are  often 
evidence  of  a  contract,  but  it  is  doubtful  w^hether 
parties  can  actually  marry  by  letter,  by  telephone  or 
by  proxy.  Marriages  by  proxy  have  taken  place  at 
various  times  in  history,  generally  between  mem- 
bers of  royal  families  of  different  countries,  but  in 
this  country  a  more  strict  adherence  to  certain  fixed 
rules  of  law  is  required.  The  contract  must  be,  in 
substance,  to  be  husband  and  wife  under  the  law. 

If  the  object  of  the  parties  be  the  assumption  of 
the  legal  status  of  marriage,  an  agreement  to  live 
together  for  life  may  suffice,  provided  it  creates 
the  union  of  one  man  and  one  woman  "so  long  as 
they  both  shall  live,"  to  the  exclusion  of  all  others, 
by  an  obligation  which,  during  that  time,  the  parties. 

82 


MARRIAGE 

cannot  of  their  own  volition  and  act  dissolve,  but 
which  can  be  dissolved  only  by  the  state.  Nothing 
short  of  this  is  marriage,  nor  will  an  agreement  for 
a  conjugal  union  such  as  their  consciences  and  relig- 
ion sanction  suffice,  nor  for  cohabitation  as  long 
as  they  can  agree.  If  legal  marriage  is  their  object, 
any  stipulations  inconsistent  with  the  law  are  simply 
void.  The  apparent  contract  is  not  affected  by  a 
secret  reservation  of  one  of  the  parties.  After  tak- 
ing a  woman  as  his  wife,  she  deeming  herself  such, 
a  man  will  not  be  permitted  to  say  he  meant  only 
to  take  her  as  his  mistress.  But  if  both  parties  have 
or  know  of  an  ulterior  object,  which  alone  is  meant 
to  be  secured  by  an  apparent  contract,  there  is  no 
marriage;  as  where  a  man  w^rote  a  letter  to  a  woman 
he  had  seduced,  acknowledging  her  as  his  wife,  it 
being  their  sole  object  to  gain  admission  for  her  to 
a  lying-in  hospital,  or  to  avoid  another  alliance  by 
pretending  to  be  married. 

The  contract  may  be  intended  to  take  effect  at 
once  or  in  the  future;  but  it  must  be  to  be  husband 
and  wife  thenceforth;  it  must  contemplate  the 
present  assumption  of  the  marriage  status.  Thus: 
— "This  is  your  wedding  ring,  we  are  married,"  fol- 
lowed by  cohabitation,  may  be  a  good  marriage 
contract.  It  is  not  sufficient  on  the  other  hand,  to 
agree  to  present  cohabitation,  and  a  future  regular 
marriage  when  more  convenient,  or  w^hen  a  wife 
dies,  or  when  a  ceremony  can  be  performed;  nor 
can,  "I  will  marry  you  in  six  weeks  if  you  will  sleep 
with  me  tonight,"  be  anything  more  than  a  promise 
to  marry.  To  this  rule  there  is  one  exception.  In 
one  case,  a  contract  looking  to  a  future  assumption 
of  the  marriage  status  is  sufficient.  In  states  where 
no  marriage  celebration  is  necessary,  and  when  such 
contract  is  followed  by  sexual  intercourse  between 
the  parties,  the  law,  so  as  not  to  presume  fornica- 

83 


WOMAN  UNDER  THE  LAW 

tion  presumes  that  parties  who  have  promised  to 
marry  mean  sexual  intercourse,  following  such 
promise,  to  be  the  consummation  of  such  agree- 
ment. This  has  been  held  in  Missouri;  but  this 
presumption  may  be  rebutted  by  any  facts  which 
show  that  the  parties  knew  or  intended  their  inter- 
course to  be  illicit,  as  where,  at  the  time,  they  were 
looking  forward  to  being  married  with  a  ceremony. 

In  many  states  no  ceremony  of  any  kind  is 
essential  to  a  valid  marriage,  and  in  such  states  a 
contract  betv/een  parties  competent  to  marry  con- 
stitutes marriage,  known,  as  the  case  may  be,  as 
marriage  per  verba  de  praesenti,  or  as  marriage  per 
verba  de  futuro  cum  copula.  In  states  where  a  cele- 
bration is  necessary  this  contract  must  exist  at  the 
time  of  such  ceremony  or  afterwards. 

All  states  have  statutes  providing  for  the  cele- 
bration of  marriages ;  what  permission  must  be  got- 
ten or  notice  given  before  the  marriage;  w^ho  must 
perform  the  marriage  ceremony  and  what  record 
of  it  must  be  made.  But  generally  such  provisions 
do  not  affect  the  validity  but  only  the  legality  of  the 
marriage.  Whether  or  not  any  of  such  provisions 
must  be  complied  with  to  render  the  marriage  valid 
depends : 

( I  )  Upon  whether  by  the  pre-existing  com- 
mon or  unwritten  law,  any  such  formality  were 
necessary. 

(2)  Whether,  if  it  were  not,  there  is  a  provis- 
ion in  the  statutes  stating  that  non-compliance  with 
it  shall  render  a  marriage  void;  and  it  is  a  general 
rule  that  no  celebration  of  marriage  is  necessary  at 
all  except  in  states  in  w^hich  it  is  held  that  a  celebra- 
tion was  necessary  at  common  law,  and  in  states 
where  the  statute,  as  in  Kentucky,  contains  words 
of  nullity. 

84 


MARRIAGE 

No  celebration  is  necessary  by  the  law  of  na- 
ture, or  by  the  canon  law  prior  to  the  Council  of 
Trent,  or  by  the  civil  law,  or  by  the  law  of  Scotland. 
In  England,  after  much  hesitation,  it  is  settled  that 
it  is,  and  this  view  has  been  sustained  in  Maryland, 
Massachusetts  and  North  Carolina;  but  the  con- 
trary has  been  held  in  Tennessee,  and  by  the 
Supreme  Court  of  the  United  States,  and  in  Ala- 
bama, California,  Georgia,  Illinois,  Iowa,  Kentucky, 
Michigan,  Minnesota,  Mississippi,  Missouri,  New 
York,  Ohio,  Rhode  Island  and  Pennsylvania,  and 
the  English  decision  has  been  disapproved  in 
Canada.  One  was  necessary  under  the  Mexican 
law^,  if  there  ever  was  any  Mexican  Law. 

The  necessity  of  the  celebration  depends  upon 
the  law  of  the  place  where  the  parties  enter  into  the 
contract  which  is  essential  to  a  valid  marriage. 
Thus,  if  the  parties  desire  to  marry  in  Maryland 
they  must  not  only  have  a  celebration  but  a  religious 
one,  i.  e.  to  constitute  a  valid  niarriage  under  the 
laws  of  that  state  some  religious  ceremony  must  be 
super-added  to  the  civil  contract.  If,  on  the  other 
hand,  the  Marylanders  desire  to  avoid  this,  they 
need  only  to  step  over  the  line  into  Pennsylvania. 

Supposing  some  ceremony  to  be  necessary,  it 
is  another  question  to  determine  what  portion  of 
the  various  ceremonies  may  be  omitted.  For  the 
ceremony  or  celebration  of  marriage  includes  not 
only  the  act  of  a  civil  or  religious  officer  declaring 
the  parties  to  be  husband  and  wife,  but  the  pre- 
requisite authority  for  such  act,  and  the  duties 
resulting  therefrom ;  not  only  the  ceremony  proper, 
but  the  consent  of  parents,  or  license  (consent  of 
the  state),  or  banns  (consent  of  the  church)  and 
the  registry  of  the  fact  that  the  marriage  has  been 
celebrated. 

85 


WOMAN  UNDER  THE  LAW 

Consent  of  parents,  license,  publication  of 
banns,  registry  of  the  marriage,  though  all  or  some 
of  them  are  everywhere  necessary  to  the  legality 
of  the  marriage,  are  nowhere,  under  English  or 
American  law,  necessary  to  the  validity  thereof; 
they  w^ere  not  so  by  the  pre-existing  law,  and  no 
statute  has  made  them  so.  Parents  consent  is  a 
mere  matter  of  form,  and  generally  not  necessary, 
under  the  statutes,  to  the  validity  of  a  minor's  mar- 
riage. We  have  seen  that  most  of  the  states  hold 
that  compliance  with  the  requirements  of  statutes 
is  not  necessary  to  the  validity  of  the  marriage.  To 
constitute  a  valid  marriage  by  the  common  law  of 
England  it  must  have  been  celebrated  in  the  pre- 
sence of  a  clergyman  in  holy  orders;  the  fact  that 
the  bridegroom  is  himself  a  clergyman  in  holy  or- 
ders, there  being  no  other  clergyman  present,  w^ill 
not  make  the  marriage  valid,  and  there  could  have 
been  no  valid  marriage  in  England  before  the  re- 
formation without  the  presence  of  a  priest,  Epis- 
copally  ordained.  The  principles  of  freedom  of 
thought,  "new  thought  "  and  statutes  have  extended 
the  right  to  celebrate  marriages  to  ministers  of  any 
church,  and  in  most  states,  to  judges,  chancellors 
and  magistrates;  and  special  provisions  have  been 
made  for  Quakers.  If  the  minister  or  judge,  etc., 
w^ere  so  de  facto  and  the  parties  have  acted  in  good 
faith,  the  marriage  is  good,  though  he  were  not 
minister,  or  judge,  de  jure. 

As  w^e  have  seen,  parties  cannot  marry  them- 
selves with  a  ceremony  when  a  celebration  is  re- 
quired; there  must  be  a  celebrant.  The  celebrant 
must  be  a  third  party ;  a  minister  cannot  marry  him- 
self. He  must  not  only  be  present,  but  must  be 
there  as  the  celebrant  of  the  marriage.  The  cele- 
brant need  only  take  notice  that  the  parties  are 
before  him  to  be  married,  and  pronounce  them  hus- 

86 


MARRIAGE 

band  and  wife.  Thus,  at  a  marriage  by  an  Episcopal 
clergyman,  the  direction  contained  in  the  Rubric 
respecting  the  opening  address  to  the  congregation, 
the  adjuration  to  the  persons  about  to  be  married 
as  to  confessing  any  lawful  impediment  to  their 
union,  and  the  putting  on  of  the  ring,  are  not  abso- 
lutely essential  to  the  validity  of  the  marriage;  the 
essential  part  of  the  service  is  the  reciprocal  taking 
each  other  for  wedded  wife  and  wedded  husband. 
In  the  case  of  the  religious  celebration,  the  man  and 
woman  need  not  belong  to  that  religion;  thus,  Prot- 
estants may  be  married  by  a  Roman  Catholic  priest. 
A  marriage  celebration  will  have  no  effect  if  the 
parties  are  not  at  the  time  competent  to  marry;  nor 
will  it,  if  they  do  not  intend  to  marry,  though  their 
consent  may  be  presumed  from  their  going  through 
the  ceremony,  and  to  negative  the  presumption  the 
absence  of  consent  must  be  clearly  shown.  It  is 
only  where  no  celebration  is  had  that  a  consumma- 
tion is  ever  required,  but  from  a  consummation  a 
celebration  is  often  presumed. 

The  consummation  of  marriage  may  be  either 
subsequent  sexual  intercourse  between  the  parties 
or  the  assumption  of  the  rights,  duties  and  obliga- 
tions of  husband  and  wife,  from  which  such  inter- 
course may  be  implied.  There  are  two  principal 
ends  of  marriage — a  lawful  indulgence  of  the  pas- 
sions to  prevent  licentiousness,  and  the  procreation 
of  children  under  the  shield  and  sanction  of  the 
law.  If  the  parties  know  their  intercourse  to  be 
contrary  to  law,  even  though  it  is  sanctioned  by  their 
religion,  it  cannot  be  an  element  of  marriage,  but  is 
mere  fornication. 

The  question  whether  or  not  a  valid  marriage 
has  been  formed  between  a  man  and  a  w^oman  may 
be  relevant  in  any  suit,  before  any  tribunal,  between 
the  parties;   and  whether  or  not  the  evidence  ad- 

87 


WOMAN  UNDER  THE  LAW. 

duced  establishes  a  marriage  must  be  judicially  de- 
termined on  proof,  or  this  question  may  be  the  issue 
in  a  suit  instituted  in  a  particular  tribunal  by  one  of 
the  parties  against  the  other,  or  by  some  third  party 
against  them  both  for  the  express  purpose  of  deter- 
mining the  validity  of  an  alleged  marriage  between 
them;  and  whether  or  not  there  has  been  a  valid 
marriage  is  judicially  determined  by  a  decree. 

In  proving  marriage,  four  different  presump- 
tions may  be  brought  into  play:  — 

( 1  )  The  general  presumption  in  favor  of 
marriage ; 

(2)  That  of  innocence; 

(3)  That  of  Hfe;   and 

(4)  That  of  the  due  performance  of  their 
duties  by  public  officers.  All  of  these  presumptions 
are  rebuttable.  It  is  doubtful  whether  they  will  all 
act  in  favor  of  third  parties; — for  instance,  credit- 
ors. 

It  is  not  necessary  for  a  party  alleging  a  mar- 
riage to  prove,  in  order  to  make  out  a  prima  facie 
case,  the  separate  existence  of  each  of  the  essentials, 
for  marriage  is  favored  in  law.  Thus,  if  the  cele- 
bration of  a  marriage  be  proved,  the  contract,  the 
capacity  of  the  parties,  in  fact,  the  validity  of  the 
marriage  is  presumed.  So,  if  the  contract  be  proved* 
the  capacity  of  the  parties  is  presumed.  To  illus- 
trate,— A  husband  left  his  home  in  Mississippi, 
October  30,  1  900,  and  went  to  Louisiana  on  busi- 
ness, where  he  was  last  heard  from  by  letter  to  his 
wife,  dated  November  30,  1900,  announcing  that 
he  was  then  sick  in  bed,  and  would  return  as  soon 
as  he  was  able  to  travel.  He  was  habitually  deli- 
cate in  health,  and  his  domestic  relations  had  always 
been  most  agreeable.  It  was  the  belief  of  his  family 
that  he  was  dead,  and  in  January,  1905,  his  wife 
married   again.      The   absent  husband   was   never 

88 


MARRIAGE 

heard  of  alive.  Under  the  circumstances  the  absent 
husband  must  be  presumed  dead,  and  the  second 
marriage  valid. 

The  presumption  of  innocence  sometimes 
gives  right  to  the  presumption  of  marriage.  A  man 
and  woman  cohabiting  without  being  married  are 
guilty  of  f ornification ;  so  when  such  co-habitation 
is  under  color  and  claim  of  marriage,  a  marriage  is 
often  presumed;  but  such  presumption  is  to  save  the 
innocence  of  the  parties,  and  will  not  arise  if  it  will 
leave  or  involve  one  of  them  in  guilt, — as  if  a  man  is 
so  cohabiting  with  two  women,  or  if  one  of  the 
parties  is  proved  to  be  married  to  some  one  else. 
So,  sometimes,  if  a  second  marriage  is  proved,  a 
previous  divorce  of  the  first  one  may  be  presumed, 
though  in  general  a  divorce  can  be  proved  only  by 
the  record;  so  death  may,  in  such  case,  be  presumed. 

A  party  is,  independently  of  statute,  presumed 
alive  for  seven  years  after  he  is  last  heard  of.  After 
seven  years  he  is  presumed  dead.  But  when  he  is 
presumed  to  be  dead  there  is  no  presumption  as  to 
the  precise  time  of  his  death.  This  must  be  deter- 
mined by  the  court  from  all  the  facts  in  the  case; 
but  in  marriage  cases  the  presumption  of  life  often 
conflicts  with  that  of  innocence,  as  where  a  hus- 
band, believing  his  wife  dead,  but  having  heard  from 
her  within  seven  years,  marries  again.  In  such 
cases  the  two  presumptions  neutralize  each  other, 
and  the  court  (judge  or  jury)  decides  as  a  matter 
of  fact  whether  or  not  at  the  time  of  the  second  mar- 
riage the  first  was  dissolved  by  death.  The  leaning, 
however,  is  generally  tow^ards  the  presumption  of 
innocence.  That  the  celebrant,  as  a  public  officer, 
has  done  his  duty,  is  presumed;  thus, — if  a  marriage 
celebration  be  proved,  it  is  presumed  that  the  cele- 
brant was  duty  authorized,  that  the  proper  prelim- 

89 


WOMAN  UNDER  THE  LAW 

inaries,  as  procuring  a  license,  had  been  complied 
v/ith;  that  the  place  and  the  forms  used  were  legal. 
In  general,  the  proof  of  the  marriage  may  be 
direct  or  indirect ;  evidence  may  be  given  of  the  fact 
that  competent  parties  have  contracted  marriage 
■with  proper  celebration  and  consummation,  or  of 
the  fact  that  they  have  lived  together  as  husband 
and  v/ife,  and  have  generally  been  reputed  as  such. 
In  some  cases  either  kind  of  evidence  will  suffice; 
in  some,  direct  evidence  is  necessary.  In  a  question 
of  a  marriage  vel  non,  the  issue  is  the  existence  of 
the  essentials  of  a  valid  marriage ;  if  the  celebration 
of  a  marriage  is  proved,  the  validity  of  the  marriage, 
the  contract  and  capacity  of  parties,  is  presumed  as 
already  shown;  if  the  contract  of  a  marriage  is 
proved,  if  no  celebration  is  necessary,  the  validity 
of  the  marriage,  and  the  capacity  of  the  parties  are 
likewise  presumed.  So  that,  the  celebration  of  the 
contract  may  be  the  real  issue.  A  contract  without 
a  celebration  is,  of  course,  no  evidence  of  the  cele- 
bration, but  it  is  sometimes  deemed  so;  in  such  cases 
the  marriage  is  said  to  be  proved  by  indirect 
evidence.  The  fact  of  the  celebration  is  generally 
proved  by  the  record  thereof,  or  by  witnesses 
present.  The  latter  is  considered  stronger  evidence, 
but  it  is  not  necessary  under  the  rule  for  the  best 
evidence  to  produce  the  record  or  the  celebrant,  un- 
less, perhaps,  the  other  evidence  is  purely  circum- 
stantial. The  fact  of  the  contract  is  generally 
proved  by  cohabitation  and  repute,  hereafter  dis- 
cussed. The  distinction  generally  made  between 
proof  of  the  fact  of  marriage  and  proof  of  the  fact 
of  matrimonial  cohabitation,  applies  properly  only 
to  cases  when  a  celebration  is  necessary  to  the 
validity  of  the  marriage,  or  is  made  an  issue  in  the 
case. 

When  the  law  requires    a    marriage    to    be 

90 


MARRIAGE 

recorded,  such  record  or  the  proper  copy  thereof, 
is  direct  evidence  of  the  marriage,  in  criminal  and 
civil  cases  alike.  On  a  prosecution  for  bigamy,  the 
marriage  may  be  shown  by  a  certified  copy  of  the 
marriage  certificate,  without  an  infringement  of  the 
constitutional  right  of  the  accused  to  meet  his  wit- 
nesses face  to  face.  But  such  record  proves  only 
what  is  required  to  be  recorded,  and  is  not  conclu- 
sive. Such  evidence,  too,  are  certificates  given  by 
the  celebrant  to  the  parties,  though  this  has  been 
denied;  but  the  delivery  and  custody  of  such  certif- 
icate must  be  proven.  This  rule  is  simply  in  ac- 
cord with  the  general  rules  of  evidence  relating  to 
the  production  and  authentication  of  writings.  So 
private  records  kept  by  a  clergyman,  certainly  after 
his  death;  so  entries  in  a  family  bible;  so  foreign 
records,  if  this  is  consistent  with  the  law  of  the 
forum.  But  in  such  cases  the  identity  of  the  parties 
must  alw^ays  be  show^n,  though  after  lapse  of  time 
slight  evidence  thereof  will  suffice.  A  valid  decree 
of  divorce  is,  of  course,  evidence  of  a  marriage; 
there  cannot  be  a  divorce  unless  there  has  been  a 
marriage. 

Any  person  present  at  the  marriage  may  tes- 
tify thereto,  whether  a  third  party  or  the  celebrant, 
and  in  general  even  parties  themselves.  Such  w^it- 
nesses  need  not  be  able  to  testify  to  the  sufficiency 
of  the  celebration ;  that  is  presumed  until  the  con- 
trary is  show^n.  The  celebrant  may  testify  to  his 
own  qualifications.  And,  in  general,  it  is  sufficient 
to  show  that  he  was  in  the  habit  of  acting  in  this 
capacity,  or  that  he  held  himself  out  as  qualified 
in  the  particular  case.  Upon  a  trial  for  bigamy 
evidence  that  the  person  by  whom  a  marriage  cere- 
mony w^as  performed  was  reputed  to  be  and  that 
he  acted  as  the  magistrate  or  minister  is  admissible, 
and  is  sufficient  prima  facie  proof  of  his  official  or 

iT" 


WOMAN  UNDER  THE  LAW 

ministerial  character.  In  pedigree  cases,  members 
of  the  family  may  testify  that  a  marriage  was 
reputed  in  the  family  to  have  taken  place.  Reputa- 
tion or  hearsay  is  admissible  in  all  matters  of  pedi- 
gree ;  and  so  the  repeated  declarations  of  the  father 
that  he  had  married  and  by  the  marriage  had  two 
children,  naming  them;  his  recognition  of  them  as 
his  legitimate  children,  their  recognition  of  him  as 
their  father,  and  of  each  other  as  brother  and  sister ; 
and  the  fact  that  the  marriage  and  legitimacy  of  the 
children  were  spoken  of  and  known  in  the  family 
are  sufficient  to  prove  the  marriage  of  the  father 
and  the  legitimacy  of  the  children. 

By  the  common  law,  families  were,  by  inter- 
marriage, incapacitated  from  testifying  for  or 
against  each  other.  The  common  law  excluded  the 
husband  and  the  wife  as  a  witness  in  any  case,  civil 
or  criminal,  in  which  either  was  a  party.  The  prin- 
ciple of  the  rule  required  its  application  to  all  cases 
in  which  the  interests  of  husband  or  wife  were  in- 
volved. Therefore,  the  wife  is  not  a  competent 
witness  against  any  co-defendant  tried  with  her  hus- 
band, though  it  be  not  directly  given  against  him. 
Thus,  a  man  being  prosecuted  for  bigamy,  his  real 
(first)  wife  could  not  prove  their  marriage.  But 
the  husband  or  wife  could  prove  the  marriage  in  a 
case  affecting  neither  of  them.  Statutes  have,  in 
many  states,  abolished  this  incapacity,  entirely  or  in 
part.  But  a  statute  abolishing  incapacity  from  in- 
terest does  not  affect  incapacity  from  marriage. 
Even  by  the  common  law,  if  no  marriage  exists, 
there  can  be  no  incapacity  from  marriage;  there- 
fore, parties  can  prove  that  an  alleged  marriage 
between  them  was  no  marriage,  unless  estopped, 
or  unless  there  is  sufficient  evidence  before  the  court 
to  establish  a  prima  facie  marriage.  Thus,  in  a  pros- 
ecution for  bigamy  the  prisoner's  real  wife  cannot 

92 


MARRIAGE 

testify  against  him,  but  his  second  wife  can.  She  is 
not  a  wife  at  all;  hence,  the  reasons  which  would 
prevent  do  not  exist.  Under  the  Maryland  statute 
a  party  cannot  prove  the  marriage  after  the  other 
party's  death;  but  can  by  Pennsylvania  law.  In 
criminal  prosecutions,  as  for  bigamy  or  adultery, 
the  prisoner's  confession  of  his  marriage  is  sufficient 
proof  of  it.  In  civil  suits,  the  declarations  and  ad- 
missions of  the  husband  and  wife  are  generally  ad- 
missible to  prove  their  marriage;  in  the  case  of  the 
husband,  being  admissions  against  interest;  and  in 
any  case,  being  part  of  the  res  gestae  of  cohabitation 
and  repute. 

When  a  marriage  is  proved  by  the  fact  that  the 
parties  had  lived  together  and  were  reputed  to  be 
husband  and  wife,  it  is  said  to  be  proved  by  cohabi- 
tation and  repute.  The  facts  that  parties  have 
publicly  acknowledged  each  other  as  husband  and 
wife,  have  assumed  marriage  rights,  duties  and 
obligations,  have  been  generally  reputed  in  the 
place  of  their  residence  to  be  husband  and  wife,  are 
relevant  to  prove  a  contract  of  marriage  between 
them,  and  consequently,  in  cases  where  no  celebra- 
tion is  necessary,  a  valid  marriage.  In  an  early 
Massachusetts  case  it  was  held  that  evidence  that  a 
woman  occupied  the  same  bed  with  the  defendant 
in  a  tenement  and  was  seen  getting  dinner  and 
doing  other  household  duties  there  in  his  absence 
was  competent  to  prove  her  to  be  his  wife.  But  in 
cases  where  a  celebration  is  necessary,  evidence  of 
a  contract  only,  is  not  relevant  to  prove  the  celebra- 
tion; still,  if  the  parties  have  cohabited,  such  evi- 
dence may  be,  in  certain  cases,  deemed  relevant,  on 
the  presumption  already  discussed,  that  such  co- 
habitation was  lawful.  Cohabitation  and  repute 
may  thus  be  direct  or  indirect  evidence  of  a  valid 
marriage ;  it  is  in  neither  case  more  than  prima  facie 

§3 


WOMAN  UNDER  THE  LAW 

evidence,  and  may  be  rebutted  by  showing  absence 
of  the  essential  contract  or  capacity ;  whether  it  is  so 
rebutted  or  not  being  left  to  the  court  or  jury  to 
determine  from  all  the  facts.  As  generally  stated, 
w^here  parties  live  together  ostensibly  as  man  and 
wife,  demeaning  themselves  tow^ards  each  other  as 
such,  and  are  received  into  society  and  treated  by 
their  friends  and  relations  as  having  and  being  en- 
titled to  that  status,  the  law  will,  in  favor  of  morality 
and  decency,  presume  they  have  been  legally  mar- 
ried. Such  presumption  is  generally  rebutted  by 
showing  that  the  parties  intended  their  connection 
to  be  illicit,  or  that  there  was  an  impediment  to  their 
marriage.  If,  when  the  connection  began,  it  was 
intended  to  be  illicit,  this  intention  is  presumed  to 
continue,  unless  evidence  is  produced  of  a  change 
of  mind.  If,  when  the  connection  began,  the  parties 
desired  or  intended  marriage,  but  an  impediment 
existed,  and  this  desire  or  intention  is  shown  to  have 
continued  after  the  impediment  was  removed,  and 
if,  at  such  later  time,  the  parties  cohabited,  even 
temporarily,  in  a  place  where  marriage  without 
celebration  is  valid,  their  marriage  is  proved;  and, 
if  they  w^ere  in  a  place  where  a  celebration  was 
necessary,  upon  slight  additional  evidence,  a  new 
celebration  will  be  presumed;  at  all  events,  the  jury 
may  decide  in  cases  where  proof  by  cohabitation 
and  repute  is  proper,  whether  or  not  there  w^as  at 
any  time  a  valid  marriage.  The  weight  of  such 
evidence  must  depend  upon  the  circumstances  of 
each  particular  case. 

In  all  cases,  except  when  a  celebration  is  al- 
leged, as  hereafter  shown,  in  which  no  celebration 
is  necessary  to  the  validity  of  the  marriage,  the  mar- 
riage may  be  proved  by  cohabitation  and  repute. 
In  all  cases,  except  those  mentioned  hereafter, 
though  a  celebration  is  necessary  to  the  validity  of 

94 


MARRIAGE 

the  marriage,  it  may  be  proved  by  cohabitation  and 
repute.  Tlius,  this  is  sufficient  to  prove  marriage 
in  actions  by  the  widow  for  her  dower,  or  marriage 
rights,  or  for  the  death  of  her  husband;  by  an  heir; 
by  the  husband  and  wife,  a«,  of  detinue,  or  eject- 
ment; or  against  the  husband  and  wife;  or  by  the 
husband  for  slander  of  his  wife;  or  against  the  hus- 
band for  a  debt  of  his  wife;  in  actions  for  neces- 
saries; in  cases  of  legitimacy;  in  suits  for  alimony; 
and  in  divorce  cases. 

In  all  cases  in  which  a  party  alleges  that  a  mar- 
riage was  celebrated  at  a  particular  time  and  place, 
he  must  prove  that  it  was  so  celebrated  at  that  time 
and  place,  and  cannot  prove  cohabitation  and  repute 
to  raise  a  presumption  of  a  marriage  at  some  other 
time  and  place. 

In  all  cases  (if  a  celebration  is  necessary  to  the 
validity  of  the  marriage)  when  proof  of  a  marriage 
would  render  one  of  the  parties  criminally  liable,  as 
in  prosecutions  for  bigamy,  adultery,  or  incest,  and 
in  actions  for  criminal  conversation,  the  celebration 
must  be  proved.  In  such  cases  cohabitation  and 
repute  is  not  evidence. 

In  setting  up  a  marriage  which  took  place  in 
another  country  or  state,  it  is  usual  to  prove  first 
the  common  law,  then  a  marriage  by  contract  or  by 
celebration,  as  required  thereby.  If  the  fact  of  a 
celebration  is  proved,  it  is  presumed  in  conformance 
with  the  common  law,  though  that  the  special  re- 
quirements of  such  law  must  be  shown  to  have 
been  complied  with,  has  been  sometimes  held.  If 
no  foreign  law  be  proved,  there  is  a  presumption 
that  it  recognizes  as  a  valid  marriage  any  cohabita- 
tion of  competent  parties  with  matrimonial  consent. 
And  courts  will  not  presume  the  existence  of  mar- 
riage laws  differing  from  those  of  the  forum.  A 
foreign   marriage   may   also   be   proved   by   proper 

95 


WOMAN  UNDER  THE  LAW 

copies  of  the  records.     The  more  difficult  the  proof, 
the  less  will  be  the  strictness  of  the  court. 

In  some  of  the  states  a  statute  provides  for  the 
proof  of  marriage;  thus,  in  Massachusetts  where 
the  record  of  cohabitation  and  repute  is  evidence  of 
a  marriage  in  any  case;  so  in  Minnesota.  But  the 
California  statute  seems  simply  declaratory  of  the 
law  heretofore  stated. 

A  suit  brought  for  the  purpose  of  having  a 
void  marriage  judicially  declared  to  be  void,  or  of 
having  a  voidable  marriage  judicially  made  void  is 
called  a  nullity  suit.  These  suits  are  frequently 
called  divorce  suits  in  statutes  and  decisions,  and 
there  seems  to  be  precedent  for  so  calling  them,  but 
properly  a  divorce  suit  is  a  suit  for  the  purpose  of 
dissolving  a  marriage  and  the  consequences  of  a 
divorce  are  very  different  from  those  of  a  decree  of 
nullity,  as  the  latter  does  not  only  destroy  marriage 
rights,  but  declares  they  never  existed. 

A  suit  which  may  partake  of  the  nature  of  a 
nullity  suit,  but  which  in  modern  times  is  very  rare, 
is  the  suit  of  jactitation  of  marriage.  This  is  where 
a  party  whether  a  man  or  a  woman,  complains  in 
the  ecclesiastical  courts  that  another  party  falsely, 
maliciously  and  without  authority,  boasts  that  they 
are  married.  There  are  three  defences ;  (  1  )  denial 
of  the  boasting;  (2)  allegation  of  a  marriage  justi- 
fying it;  (3)  or  of  authority  to  assert  the  marriage. 
These  suits  are  unknown  in  the  United  States,  there 
being  no  ecclesiastical  courts. 

As  already  stated,  there  are  two  kinds  of  nul- 
lity suits;  one,  in  cases  where  the  marriage  is  void 
or  is  voidable  without  decree,  and  the  decree  is 
declaratory  only;  the  other,  in  cases  where  the 
marriage  is  voidable  and  requires  a  decree  to  render 
it  void.    The  two  suits  are  distinct  as  to  jurisdiction, 

96 


t 


J 


MARRIAGE 

procedure  and  causes,  and  the  distinction  must  be 
carefully  maintained. 

A  marriage  which  is  void  per  se  ab  initio,  may, 
by  judicial  decree,  be  declared  void;  such  are  mar- 
riages void  for  want  of  capacity  or  celebration.  Like- 
wise a  marriage  which  is  voidable  by  the  parties; 
such  are  marriages  voidable  for  lunacy,  or  want  of 
consent;  for  fraud,  error  or  duress.  In  such  cases 
courts  of  equity,  in  the  exercise  of  their  ordinary 
jurisdiction,  independently  of  any  provision  of  the 
divorce  law  may  pass  such  a  decree.  Other  courts, 
by  special  provision,  such  as  divorce  courts,  may 
pass  such  a  decree.  In  general,  either  party  may 
complain;  but  one  cannot  allege  his  own  fraud  or 
duress;  nor  can  one  allege  w^ant  of  consent  if  he 
has  ratified  the  marriage. 

A  lunatic  may  apply,  if  he  recovers  his  mind; 
otherw^ise  his  guardian  applies.  A  sane  party  who 
has  married  a  lunatic  in  ignorance  and  good  faith 
may  also  complain.  Perhaps,  even  after  the  death 
of  the  parties,  a  decree  could  be  obtained  on  the 
application  of  anyone  interested. 

Statutes  sometimes  provide  for  all  the  pro- 
ceedings in  these  cases. 

The  decree  in  this  class  of  nullity  suits  is  simply 
declaratory;  it  declares,  it  does  not  make,  the  mar- 
riage void;  it  is  a  judicial  determination  of  the  status 
of  the  parties,  and  though  perhaps  not  binding  on 
persons  not  parties  to  the  suit,  it  practically  settles 
the  question  of  the  validity  or  invalidity  of  the  mar- 
riage. Of  course  it  settles  the  existence  or  non- 
existence of  any  personal  or  property  marriage 
rights. 

Jurisdiction  in  the  United  States  to  declare 
void  a  marriage  otherwise  valid,  as  is  the  case  w^ith 
jurisdiction  to  grant  a  divorce,  depends  entirely 
upon  the  statute.      In    England    the    ecclesiastical 

97 


WOMAN  UNDER  THE  LAW 

courts  alone  granted  divorces  and  declared  mar- 
riages void  for  the  canonical  impediments  of  im- 
potence and  consanguinity  and  affinity,  and  as  no 
courts  in  the  United  States  have  succeeded  to  the 
ecclesiastical  jurisdiction,  courts  of  equity,  for  ex- 
ample, cannot  as  such  avoid  a  marriage  for  im- 
potency  or  consanguinity.  Statutes  sometimes  con- 
fer this  jurisdiction  in  unequivocal  terms,  but  quite 
often  include  it  with  divorce  jurisdiction,  providing, 
for  example,  that  a  divorce  may  be  granted  for  im- 
potence. In  such  cases  the  word  divorce  w^ill 
be  construed  to  mean  decree  of  nullity;  and  even 
where  jurisdiction  in  such  cases  is  not  expressly 
given  it  has  sometimes  been  held  to  be  impliedly 
given  with  divorce  jurisdiction.  Statutes  also  in 
some  states  create  additional  causes  for  avoiding 
marriages.  As  to  the  persons  and  their  status,  juris- 
diction, as  in  divorce  cases,  depends  upon  domicile. 

The  principles  applied  and  procedure  as  to  the 
canonical  disabilities  is  like  that  of  the  ecclesiastical 
court,  and,  in  general,  is  like  that  in  divorce  suits. 

The  causes  of  nullity  are  those  of  the  canonical 
law,  to  wit:  impotence,  consanguinity  and  affinity; 
and  such  as  may  be  created  by  statute,  as  the  ex- 
istence of  a  previous  marriage  honestly  supposed 
to  have  been  dissolved,  under  a  New  York  statute, 
and  absence  of  a  parent's  consent  under  a  Scotch 
law^.  In  Scotland  a  marriage  can,  within  a  year,  but 
not  afterwards,  be  avoided  for  want  of  parent's  con- 
sent. 

A  voidable  marriage  may,  in  general,  be 
avoided  on  the  application  of  either  party,  but  the 
decree  must  be  passed  during  the  lifetime  of  both 
parties  or  the  marriage  w^ill  be  binding.  Under 
statutes  the  state  is  sometimes  given  power  to  apply 
for  avoidance  of  the  marriage  where  the  cohabita- 
tion is  incestuous  or  otherwise  criminal.     Third  per- 

98 


MARRIAGE 

sona  who8«  property  rights  arc  affected  should  be 
made  parties  defendant,  and  in  some  cases  third  per- 
sons may  even  apply  for  a  decree  of  nullity ;  this  is  a 
doubtful  question  and  the  weight  of  authority  is 
perhaps  against  such  right. 

The  decree  makes  void  what  might  otherwise 
have  been  valid.  In  the  absence  of  statute  it  renders 
the  marriage  void  ab  initio;  it  declares  no  marriage 
ever  existed.  Thus,  the  children  are  illegitimate; 
the  alleged  husband  has  no  rights  in  the  alleged 
wife's  property,  nor  have  his  creditors;  and  the  sale 
of  her  chattel  by  him  as  husband  is  void.  She  can 
sue  him  for  her  property  which  he  has  taken,  or  for 
her  services  rendered  to  him  before  the  decree.  The 
communications  between  them  are  not  privileged 
and  a  town  settlement  depending  upon  the  marriage 
is  void.  Such  a  putative  marriage  is,  however,  suffi- 
cient consideration  to  support  a  marriage  settle- 
ment. Such  a  decree  is  usually  conclusive  on  all 
persons.  Not  being  properly  a  decree  of  divorce, 
alimony  is  not  incident  to  it,  though  if  there  has 
been  a  form  of  marriage,  alimony  pendente  lite  and 
counsel  fees  will  be  allowed.  Under  statutes,  the 
effect  of  the  decree  is  different ;  it  may  make  the 
marriage  null  only  from  its  date;  the  prior  issue  may 
be  legitimate;  the  court  may  have  power  to  adjust 
the  property  rights  of  the  parties. 

There  are  penalties  in  most  states  which  parties 
may  incur  by  omitting  the  various  ceremonies 
prescribed  for  marriages.  There  are  also  various 
crimes  which  may  attend  the  entrance  into  an  ille- 
gal marriage  such  as  fornication,  adultery,  mis- 
cegenation, incest  and  bigamy. 


99 


CHAPTER  V. 
HUSBAND  AND  WIFE 

One  of  the  fictions  of  the  Common  Law  was, 
that  by  marriage  the  husband  and  wife  became  one 
legal  person.  By  marriage,  the  woman  lost  her 
legal  identity  and  became  civiliter  mortua;  she  was 
covered  by  or  merged  in  her  husband,  was  called  a 
"feme  covert,"  and  her  condition  was  called  "cover- 
ture." In  consequence  of  this  fiction  of  unity  of 
person  in  husband  and  wife,  neither  the  husband 
nor  the  wife  in  the  absence  of  statute  provision 
to  the  contrary,  can  grant  the  one  to  the  other 
an  estate  in  possession  during  the  lifetime  of  the 
grantor.  The  rule  itself  is  one  of  those  stubborn 
and  senseless  mandates  of  the  common  law  which 
requires  absolute  obedience  from  the  courts. 

As  we  have  seen  in  chapter  one,  the  existence 
of  the  wife  under  the  common  law  was  hardly 
recognized;  her  property  became  vested  in  the  hus- 
band (subject  to  some  slight  exceptions),  and  the 
wife  became  legally  a  mere  mema]  of  the  husband. 
From  this  principle  arises  the  necessity,  at  law^,  of 
all  conveyances  and  covenants  being  made  through 
the  interposition  of  trustees.  To  the  civil  law  this 
fiction  was  unknown.  In  equity  the  civil  law  was 
follow^ed  to  a  great  extent  and  the  fiction  of  unity 
was  ignored.  The  Roman  law  treated  the  husband 
and  wife  as  distinct  persons  who  might  have  sep- 
arate estates.  It  enabled  them  to  make  contracts 
and  incur  debts  in  their  own  names  and  permitted 
the  wife  to  be  sued  without  her  husband. 

100 


HUSBAND  AND  WIFE 

The  course  of  modern  legislation  has  been 
universally  to  do  away  with  this  fiction  in  its  strict- 
ness, and  to  recognize  the  separate  existence  of 
husband  and  wife.  But  great  confusion  has  been 
caused  by  the  fact  that  a  technical  rule  of  construc- 
tion has  led  many  courts  to  limit  to  a  few  cases 
statutes  intended  by  legislatures  to  destroy  this 
fiction  generally.  The  general  though  tardy  ten- 
dency of  legislation  in  this  country  has  been  to  make 
husband  and  wife  equal  in  all  respects  in  the  eye 
of  the  law.  The  courts  which  have  ever  been  cpn- 
servative,  construe  these  statutes  in  a  spirit  so  nar- 
row and  illiberal  as  to  almost  entirely  defeat  the 
intention  of  the  lawmakers;  but  generally  with  a 
promptness,  enforced  by  female  protest,  a  succeed- 
ing legislature  would  reassert  in  a  more  unequivocal 
form  the  same  principles  which  the  courts  had  be- 
fore almost  expounded  out  of  existence.  The  fic- 
tion of  legal  unity  affected  at  common  law  all  the 
reciprocal  capacities  of  husband  and  wife  and  many 
of  their  mutual  rights  and  obligations;  and  by  as- 
suming that  it  was  the  wife  whose  identity  was  lost, 
gave  rise  to  all  the  disabilities  of  married  women. 
To  illustrate:  husband  and  w^ife  being  one  person 
could  not  contract  together  or  wrong  each  other 
civilly  or  criminally,  or  sue  each  other;  they  could 
not  testify  for  or  against  each  other,  and  a  sale^^i^  ^ 
trustee  to  his  w^ife  was  like  a  sale  to  himself. 

The  wife  being  merged  in  the  husband  took  his 
name.  If  property  vested  in  them  with  a  third  per- 
son, they  took  one-half,  instead  of  two-thirds.  If 
real  estate  vested  in  them  they  took  one  estate  and 
became  tenants  by  entireties. 

By  the  common  law,  contracts  between  hus- 
band and  wife  are  absolutely  void  for  want  of 
parties  and  the  wife's  power  to  consent.  A  mere 
personal  executory  contract  between  them  is  un- 

101 


WOMAN  UNDER  THE  LAW 

qualifiedly  void.  In  a  Maryland  case  decided  in 
1 873,  it  was  held  that  a  deed  from  a  married  woman 
of  her  separate  estate,  directly  to  her  husband,  is  a 
nullity ;  and  upon  the  death  of  the  husband,  he  hav- 
ing survived  his  wife,  the  prop>erty  will  descend  to 
her  heirs  at  law.  In  Massachusetts  a  law  was  en- 
acted in  1912  whereby  conveyances  of  real  estate 
by  deed  might  be  made  directly  from  one  to  the 
other. 

A  wife  can  execute  a  power  in  favor  of  her 
husband  and  can  deal  with  him  in  her  representa- 
tive capacities;  but  the  validity  of  any  other  con- 
tract between  them  must  be  based  either  upon  the 
doctrines  of  equity  or  upon  the  provisions  of  some 
statute. 

In  Equity  the  duality  of  husband  and  w^ife  has 
always  been  recognized,  and  so  has  been  the  capac- 
ity of  married  women  to  hold,  convey  and  charge 
by  contract  property  w^hich  is  called  their  equitable 
separate  property,  or  their  sole  and  separate  estate. 
Any  contract  made  directly  between  husband  and 
wife  w^ill  be  valid  in  equity,  if  it  would  have  been 
valid  at  law  if  made  through  a  trustee  or  third  party. 
Under  the  laws  of  California,  if  the  husband  pur- 
chases real  estate  w^ith  the  sef)arate  property  of  the 
wife,  but  takes  the  conveyance  to  himself,  the  land 
thus  purchased  is  also  the  separate  property  of  the 
wife,  as  between  the  husband  and  the  w^ife.  Under 
the  laws  of  Massachusetts,  if  a  wife  places  in  her 
husband's  hands  her  separate  property,  to  be  used 
by  him  in  his  business,  there  is  no  presumption  that 
he  receives  it  in  trust  for  her,  but  the  burden  is  on 
her  to  prove  the  fact.  In  the  absence  of  such  proof, 
the  money  must  be  deemed  to  have  been  given  to 
him  with  the  intention  that  it  should  be  applied  to 
the  use  or  benefit  of  either  or  both  of  them  at  his 
discretion. 

102 


HUSBAND  AND  WIFE 

One  spouse  cannot  recover  at  common  law 
against  the  other  for  slander  or  assault  and  battery. 
Nor  does  this  right  arise  after  the  marriage  has  been 
dissolved  by  divorce.  Nor  does  equity  differ  from 
law  as  to  personal  w^rongs.  As  husband  and  wife 
are  one.  not  only  does  their  marriage  extinguish  all 
rights  growing  out  of  ante-nuptial  personal  wrongs, 
but  while  it  continues  it  is  a  continually  operating 
discharge  of  rights  arising  from  such  w^rongs. 
Courts  of  equity  do  secure  to  married  women  the 
enjoyment  of  their  property,  and  will  prevent  its 
destruction  or  injury  by  the  husband.  Under  the 
statutes  of  Illinois  and  Iowa  married  women  have 
been  placed  upon  a  footing  from  which  they  can 
sue  their  husbands  for  torts,  even  at  law;  but  mere 
property  acts  do  not  give  them  this  power;  so  that. 
a  wife  with  statutory  separate  property  which  she 
holds  as  a  feme  sole  cannot  sue  her  husband  in  tres- 
pass or  trover  for  breaking  or  removing  it.  She 
must  take  preventative  measures  to  preserve  it; 
criminal  conduct  of  one  towards  the  other  is  not 
authorized  by  reason  of  the  relation  of  husband  and 
wife.  Prosecutions  of  husbands  for  assaulting  their 
wives  are  common,  but  not  common  enough;  and 
wives  are  frequently  prosecuted  (sometimes  un- 
justly) for  chastising  their  husbands. 

The  marital  relation  may  prevent  certain  con- 
duct of  one  relating  to  the  others  property  from 
being  criminal.  So  one  spouse  cannot  steal  from 
the  other.  The  general  rule  of  law  is,  that  a  wife 
cannot  be  found  guilty  of  larceny  for  stealing  the 
goods  of  her  husband,  and  that  is  upon  the  prin- 
ciple that  the  husband  and  wife  are  in  the  eye  of 
the  law  one  person ;  but  this  rule  is  properly  and 
reasonably  qualified  when  she  becomes  an  adul- 
teress. She  thereby  determines  her  quality  of  wife 
and  her  property  in  her  husband's  goods  ceases. 

103 


WOMAN  UNDER  THE  LAW 

A  husband  could  always  v/ill  his  property  to 
his  wife,  as  to  a  stranger,  for  his  will  takes  effect 
only  upon  his  death  and,  therefore,  after  the  mar- 
riage unity  has  been  destroyed.  But  at  common 
law^  the  wife  was  merged  in  her  husband  and  ex- 
cept under  a  pow^er,  or  by  virtue  of  a  statute,  or  in 
a  representative  capacity,  even  now^  she  cannot  will 
at  all.  But  when  for  any  reason  she  can  will  gen- 
erally to  strangers,  she  can  will  to  her  husband,  be- 
cause, as  already  stated,  the  unity  of  husband  and 
w^ife  cannot  interfere.  So  a  general  power  in  a  deed, 
or  in  a  statute,  enabling  her  to  will,  includes  wills  to 
her  husband.  Some  statutes  expressly  prohibit 
wills  betw^een  husband  and  wife  or  limit  the  amount 
that  can  be  willed;  others  put  the  surviving  husband 
or  w^ife  upon  an  election  between  the  w^ill  and  the 
law.  The  effect  of  the  will  depends  on  the  existing 
law  at  the  time  of  the  testator's  death.  A  mans 
will  is  revoked  by  his  subsequent  marriage  and 
birth  of  issue  unless  it  provides  for  such  issue  by  a 
former  marriage.  A  woman's  w^ill  is  revoked  by 
her  marriage  alone,  unless  by  statute  she  has  full 
power  to  make  a  will,  in  which  case  probably  her 
will  is  revoked  as  a  man's  is. 

A  devise  to  "My  wife  "  means,  in  the  case  of 
several  wives,  the  wife  at  the  time  the  will  was 
made.  If  there  was  no  wife  at  such  time,  but  the 
testator  was  about  to  marry,  his  intended  wife  takes. 
A  devise  to  "My  wife  "  is  void  if  the  w^oman  had 
deceived  the  testator  into  thinking  himself  married. 
And  so  of  a  devise  to  "My  husband." 

At  common  law^  suits  between  husband  and 
wife  are  entirely  unknown  because  husband  and 
wife  are  one,  and  as  has  been  seen,  cannot  be  under 
obligation  to  each  other  either  in  contract  or  in  tort. 
In  equity,  however,  suits  between  husband  and  wife 
have  been  know^n  from  early  times,  and  in  courts  of 

104 


HUSBAND  AND  WIFE 

equity  have  been  enforced  those  obligations  which, 
it  has  been  shown,  husband  and  wife  could  mutually 
incur.  In  such  cases  the  wife  is  represented  by  a 
trustee  or  next  friend.  Thus  at  law  a  man  cannot 
even  confess  judgment  in  favor  of  his  wife,  but 
when  courts  of  law  and  of  equity  are  combined,  as 
in  Pennsylvania,  he  can.  A  husband  cannot  at  lawr 
sue  his  wife  on  a  covenant  to  pay  rent  and  one  can- 
not sue  the  other  for  assault  and  battery.  But  in 
equity  a  wife  can  institute  proceedings  against  her 
husband  for  the  protection  of  her  property. 

A  statute  enabling  a  married  woman  to  sue 
her  husband  does  not  enable  her  to  sue  him  for  a 
personal  wrong  to  herself.  Statutes  authorizing 
married  women  to  sue  and  be  sued,  as  if  unmarried, 
do  not  authorize  suits  between  husband  and  wife, 
except  in  equity,  for  the  reasons  already  given. 

After  the  marriage  has  been  dissolved  by  death 
or  divorce,  suits  can  be  brought  between  the  parties 
or  their  representatives,  to  enforce  any  right  which 
existed  during  coverture;  but  such  an  event  does 
not  create  rights,  it  simply  removes  impediments 
to  remedies,  it  has  been  held  in  Massachusetts  that 
a  promissory  note  made  and  given  by  a  husband  to 
his  wife  before  their  marriage,  becomes  a  nullity 
upon  the  marriage  being  performed  and  is  not 
revived  on  the  death  of  the  husband. 

At  common  law  a  wife  had  no  property  in 
possession  during  coverture,  as  will  be  seen,  but 
her  possession  was  her  husband's  possession,  and 
even  money  in  her  pocket  was  deemed  inkier  hus- 
band s  actual  possessfon ;  as  a  consequence,  the 
possession  of  husbandand  wifejvyas  the_pojsession 
of  the  husband,  and  so  far  as  it  was  evidence  of 
title  at  all,  it  was  evidence  of  the  husband's  title. 
And  although  married  women  came  to  hold  equit- 
able,   separate    property    and    statutory    separate 

105 


WOMAN  UNDER  THE  LAW 

property,  the  presumption  still  exists  that  they  have 
no  property,  and  that  all  the  property  about  the 
family  home  is  in  the  possession  of  the  husband 
and  belongs  to  him.  The  presumption  of  the  hus- 
band's ownership  not  only  exists,  but  it  continues 
even  after  his  death,  so  that  property  held  by  a 
man's  widow,  w^ho  is  also  his  administratrix,  is 
presumed  to  be  held  by  her  in  the  latter  capacity. 
The  presumption  in  favor  of  the  husband  must  be 
overcome  in  every  case.  Even  when  a  w^ife  has 
bought  property  in  her  ow^n  name,  the  purchase 
money  is  presumed  to  have  been  her  husband's. 
This  perhaps  makes  but  little  difference  as  far  as  her 
husband  or  a  stranger  is  concerned,  for  as  against 
them  a  gift  (of  the  purchase  money)  from  her  hus- 
band to  her  is  good,  and  may  be  inferred  from  cir- 
cumstances; but  as  against  her  husband's  creditors 
(as  w^hen  she  sues  for  taking  her  goods  for  her  hus- 
band's debts),  she  must  prove  not  only  that  the 
purchase  was  made  for  her,  but  that  it  w^as  made  out 
of  her  separate  funds,  or  upon  her  separate  credit. 
And  it  has  even  been  held  that  a  creditor  of  the 
w^ife,  seizing  goods  alleged  to  be  hers,  must  prove 
that  they  are  hers  and  not  her  husband's. 

As  to  real  estate,  it  has  been  held  that  when 
the  husband  and  w^ife  live  together  on  the  wife's 
farm,  the  husband  is  presumed  to  be  the  tenant,  and 
owns  the  crop,  unless  the  wife  proves  that  he  farmed 
it  as  her  agent.  The  occupancy,  cultivation,  and  ap- 
parent control  by  the  husband  of  the  wife's  lands 
where  nothing  appears  to  show  his  or  her  actual  in- 
terest in  them,  will  raise  a  presumption  of  tenancy 
in  him,  and  consequent  ownership  of  the  crop.  It 
is  well  settled,  however,  that  a  husband  may  man- 
age his  wife's  property  without  acquiring  any  rights 
therein,  or  in  any  way  rendering  it  liable  for  his 
debts.     As  the  possession  of  husband  and  wife  is 

106 


HUSBAND  AND  WIFE 

thus  at  best  equivocal,  neither  can  rely  upon  pos- 
session to  prove  acquisition  of  title  from  the  other, 
and  a  wife  can  assert  her  title  even  to  property 
vv^hich  she  has  allowred  her  husband  to  have  taxed 
in  his  name;  and  this  is  because  it  is  the  policy  of 
the  law  to  encourage  the  trust  and  intimacy  of  the 
marriage  relation  and  there  is  no  such  thing  as  ad- 
verse possession  as  between  husband  and  w^ife  as 
long  as  they  cohabit. 

Gifts  between  husband  and  wife  are  valid  and 
are  not  uncommon,  but  the  donor's  intention  to 
divest  himself  or  herself  of  the  property,  and  the 
carrying  out  of  that  intention  by  delivery,  must  be 
clearly  proved  by  the  donee,  wife  or  husband,  as 
the  case  may  be.  CKving  to  the  intimacy  of  their 
relations,  actual  delivery  is  very  difficult  to  prove, 
and  the  only  safe  way  of  perfecting  a  gift  betw^een 
them  is  by  constructive  delivery  by  some  writing  or 
formal  instrument,  like  a  bill  of  sale.  This  is  simply 
a  wise  precaution.  This  reasoning  does  not,  how- 
ever, apply  to  mere  personal  effects,  or  ornaments 
used  by  husband  and  w^ife,  such  as  the  wardrobe  of 
the  wife,  or  jewels,  or  other  expensive  personal 
articles  which  in  a  sense  might  be  said  to  be  appro- 
priated to  the  use  of  the  wife,  or  to  such  other 
property  as  the  one  or  the  other  uses  or  enjoys 
alone. 

In  the  case  of  conveyances  by  a  debtor,  the 
general  rule  is  that  if,  after  the  conveyance  is  made, 
he  retains  possession  of  the  property  conveyed,  such 
conduct  is  evidence  of  an  actual  intent  to  defraud 
his  creditors,  and  must  be  explained.  A  change  of 
possession  ordinarily  attends  a  transfer  of  the  title 
of  chattels,  and  therefore  the  law^  looks  with  jealousy 
upon  a  transfer  of  title  without  a  corresponding 
change  of  possession  where  such  change  is  possible, 
but  as  between  husband  and  wife  separate  posses- 

107 


WOMAN  UNDER  THE  LAW 

sion  in  the  wife  is  not  ordinarily  possible,  and  is  not 
therefore  to  be  expected  or  required;  as  applied  to 
husband  and  wife,  therefore,  this  rule  has  given  rise 
to  much  dispute.  It  is  said  that  a  husband's  posses- 
sion of  his  wife's  property  is  not  in  itself  evidence 
of  fraud,  because  he  has  the  right,  growing  out  of 
the  right  of  cohabitation,  to  use  and  possess  her 
property  in  their  home;  but  this  is  not  true  if  his 
possession  is  not  consistent  w^ith  the  purpose  for 
which  the  property  w^as  given  to  or  purchased  by 
her.  If  a  husband  should  give  his  wife,  or  sell  to 
her,  chattels  for  which  she  w^ould  have  no  use,  but 
which  he  w^ould  have  to  continue  to  use  in  his  busi- 
ness, as  if  a  laborer  should  give  his  w^ife  his  horse, 
cart  and  tools,  certainly,  some  special  circumstances 
w^ould  have  to  be  proved  to  rebut  the  presumption 
that  he  meant  to  secure  himself  against  his  creditors. 
A  wife  may  make  her  husband  her  agent  and  be 
bound  by  his  acts,  as  we  shall  see,  but,  on  account 
of  the  presumed  coercion  of  the  wife  by  her  hus- 
band, it  is  not  a  fraud  if  she  stands  by  and  allows 
him  to  say  that  goods  which  are  really  hers  belong 
to  him.  This  is  on  the  general  principle  of  estoppel, 
that  he,  who  holds  his  peace  when  he  ought  to  have 
spoken,  will  not  be  heard  when  he  should  be  silent. 
Some  authorities  hold  that  a  wife  cannot  assert  her 
title  to  property  of  w^hich  she  has  allowed  her  hus- 
band to  be  the  apparent  ow^ner  and  thus  get  credit; 
and  this  is  certainly  the  rule  if  she  has  done  this  in- 
tentionally. In  some  states  statutes  especially  pro- 
vide that  a  schedule  of  the  separate  property  of  mar- 
ried women  shall  be  filed,  and  that  transfers  between 
husband  and  w^ife  shall  be  recorded;  and  it  seems 
that  general  statutes  which  provide  that  "no  prop- 
erty whereof  the  grantor  shall  remain  in  possession 
shall  pass  as  against  his  creditors,  unless  by  bill  of 
sale  duly  recorded"  apply  to  all  transfers  betw^een 

108 


HUSBAND  AND  WIFE 

husband  and  wife  where  the  grantor  apparently  re- 
mains in  possession.  So  that  to  rebut  the  presump- 
tion of  fraud,  transfers  between  husband  and  wife 
should  be  by  formal  instrument  duly  recorded. 

At  common  law,  with  certain  exceptions 
named  below,  the  rule  was  that  a  husband  and  wife 
could  not  testify,  the  one  for  or  against  the  other, 
in  any  legal  proceeding  in  which  the  other  was  a 
party,  or  which  involved  the  other's  pecuniary  in- 
terests, or  criminal  responsibility.  The  rule  is 
firmly  established,  however,  that  to  exclude  a  wit- 
ness on  the  score  of  a  future  interest  it  must  appear 
that  the  judgment  in  the  case  in  which  he  is  called 
to  testify  can  be  used  in  evidence,  for  or  against 
him,  in  a  subsequent  case  in  which  he  is  a  party. 
If  such  judgment  can  be  so  used,  the  witness  is 
interested  and  his  wife  cannot  testify.  This  was 
because  husband  and  wife  were  one,  and  as  no  one 
could  testify  for  or  against  himself,  his  wife  could 
not  testify  for  or  against  him;  to  allow  one  to 
testify  for  or  against  the  other  would  be  to  endanger 
the  harmony  and  confidence  of  the  marriage  rela- 
tion. 

The  common  law  rule  applied  equally  to  the 
husband  and  the  wife;  and  with  differences  to  both 
civil  and  criminal  cases.  Legislation  in  Maryland 
has  removed  incapacity  of  husband  and  wife  to 
testify  for  and  against  each  other  in  civil  matters, 
but  not  in  criminal. 

The  incompetency  of  a  husband  or  wife  to 
testify  for  or  against  each  other  in  criminal  prose- 
cutions at  common  law^  arose,  not  from  interest  in 
the  result  of  the  suit,  but  was  based  upon  con- 
siderations of  public  policy,  grow^ing  out  of  the 
marital  relation,  and  could  not  be  w^aived  by  con- 
sent of  the  parties.  Just  as  soon  as  marriage  exists, 
the  rule  applies,  though  one  of  the  parties  has  been 

109 


WOMAN  UNDER  THE  LAW 

summoned  to  testify  before  the  marriage  took 
place;  but  it  has  no  application,  except  as  to  con- 
fidential communications  after  the  marriage  has 
been  dissolved  by  death,  or  divorce. 

The  exceptions  above  referred  to  were  as  fol- 
lows :  husband  and  wife  could  testify  for  and  against 
each  other  in  prosecutions  of  the  one  for  criminal 
injury  to  the  other,  as  for  assault  and  battery,  rape, 
shooting  and  forcible  abduction.  Dying  declara- 
tions of  one  w^ho  has  been  murdered  are  admissible 
in  a  trial  of  the  other  for  the  other.  A  wife's  affida- 
vit is  evidence  against  her  husband  when  she  ex- 
hibits articles  of  peace  against  him.  The  necessity 
of  the  case  made  this  and  the  above  exceptions  for 
in  criminal  matters  of  this  character  there  are  sel- 
dom other  w^itnesses.  Declarations  of  the  one  w^hile 
acting  as  the  agent  of  the  other  are  admissible 
against  the  other.  In  trials  for  treason  one  was  com- 
pellable to  testify  against  the  other.  The  rule  was 
never  applicable  in  purely  collateral  proceedings. 

Statutes  have  almost  destroyed  the  common 
law  rule.  Statutes  abolishing  incapacity  to  testify 
on  account  of  interest  do  not  change  the  rule  as  to 
husband  and  wife,  whose  incapacity,  as  has  been 
seen,  depends  on  other  reasons  as  well ;  nor  do  mere 
general  statutes  authorizing  all  persons  to  testify 
affect  the  marital  incapacity.  The  rule  must  be 
changed  expressly,  or  by  necessary  implication; 
and  a  statute  enabling  the  parties  litigant  to  any 
suit  and  their  husbands  and  wives  to  testify,  does 
not  change  the  common  law  rule  in  criminal  suits. 
But  when  parties  to  suits  are  enabled  to  testify,  and 
husband  and  w^ife  are  joint  parties,  he  may  testify 
as  to  his  interest,  and  she  as  to  hers.  To  illustrate, — 
In  an  action  against  a  husband  to  foreclose  a  mort- 
gage on  a  homestead,  the  w^ife  may  defend  to  avoid 
foreclosure  of  dower;  and,  as  to  this,  may  testify 

110 


HUSBAND  AND  WIFE 

for  herself,  but  not  in  aid  of  the  defence  of  her  hus- 
band. When  a  statute  provides  that  all  parties  may 
testify,  except  that  husband  and  wife  cannot  in 
certain  cases,  they  can  in  all  other  cases;  no  other 
view  could  possibly  be  taken. 

Conjugal  rights  and  obligations  are  those 
which  attach  to  one  as  husband  or  as  wife.  They 
include  not  only  the  rights  and  obligations  of  hus- 
band and  wife  towards  each  other, — such  as  the 
right  of  cohabitation  and  the  obligation  to  support 
— but  also  their  rights  and  obligations  towards  third 
parties,  such  as  the  husband's  right  to  recover  dam- 
ages for  injuries  to  his  wife,  and  his  obligation  to 
make  good  damage  done  by  her;  and  then,  these 
rights  and  obligations  give  rise  to  special  suits  w^hich 
must  be  considered. 

It  is  not  essential  to  the  validity  of  a  marriage 
that  the  parties  should  love  each  other;  and  courts 
take  no  notice  of  the  mutual  feelings  of  husband 
and  wife,  except  so  far  as  these  manifest  themselves 
in  conduct,  and  still  the  alienation  of  the  affections 
of  a  spouse  is  one  of  the  grounds  of  damage  in  a 
suit  for  criminal  conversation. 

Normally,  and  in  the  theory  of  the  relation, 
parties  w^ho  marry  alw^ays  contemplate  cohabitation 
and  sexual  intercourse.  The  law  not  only  presumes 
that  husband  and  wife  have  a  common  home,  but 
often  that  a  man  and  woman  living  in  a  common 
home  are  married. 

Cohabitation  is  in  fact  a  conjugal  right;  the 
husband  has  a  right  to  the  wife's,  and  the  wife  to  the 
husband's  company;  a  husband's  agreement  to  pay 
his  wife  to  live  w^ith  him  is  w^ithout  consideration; 
I  do  not  know  how  far  he  would  be  morally  bound 
by  a  post-nuptial  contract  by  which  he  hires  his  wife 
to  live  with  him ;  but  the  legal  obligation  would  not 
be  recognized  by  any  court.     ELach  has  the  right  to 

111 


WOMAN  UNDER  THE  LAW 

enter  the  family  residence ;  whichever  owns  it.  The 
property  may  be  hers  alone,  but  the  residence  is 
equally  his;  the  estate  may  be  in  her  name,  but  the 
dwelling  house,  the  domus,  is  that  of  both.  It  was 
not  intended  by  allowing  her  to  own  her  own  prop- 
erty as  fully  after  marriage  as  before  that  he  should 
not  sit  at  her  table,  use  her  furniture  or  house,  or 
mcike  love  to  her  poodle  dog  if  he  so  wishes. 

Matrimonial  cohabitation  involves  sexual  in- 
tercourse and  is  presumably  contemplated  by  those 
who  marry;  and  from  such  cohabitation  sexual  in- 
tercourse is  implied.  In  fact  sexual  intercourse  is  a 
conjugal  right.  If  owing  to  some  physical  or 
psychic  defect  existing  at  the  time  of  the  marriage 
in  one  of  the  parties  to  a  marriage,  the  enjoyment 
of  this  right  is  permanently  impossible,  the  mar- 
riage may  be  avoided,  as  we  have  seen  in  the  chap- 
ter on  "Marriage."  But  the  mere  denial  of  the  right 
does  not  work  a  forfeiture  of  any  other  conjugal 
right,  and  is  not  cruelty,  or  desertion,  though  it  may 
be  an  indignity,  and  accompanying  an  offer  to 
resume  cohabitation,  may  render  such  an  offer  of 
no  effect;  nor  does  it  justify  separation.  The  exces- 
sive indulgence  of  this  right  by  one  of  the  parties 
to  the  injury  of  the  other's  health,  or  the  insisting 
upon  it  when  the  other  party  is  delicate,  w^eak  or  ill, 
or  by  one  who  has  a  venereal  disease,  is  cruelty  and 
justifies  separation,  or  a  suit  for  divorce.  This  right 
is  waived  or  forfeited  w^ith  the  right  of  cohabitation. 
If  one  of  the  parties  indulges  in  sexual  intercourse 
w^ith  anyone  but  the  other  spouse,  the  injured 
spouse  may  sue  for  divorce  for  adultery,  as  w^e  shall 
see  in  the  chapter  on  "Divorce,"  or  (it  has  been 
held)  may  kill  the  third  party  in  flagrante  delecto, 
and  be  guilty  only  of  manslaughter. 

The  husband  is  the  head  of  the  family,  not- 
w^ithstanding  statutes   giving  the  married  women 

112 


HUSBAND  AND  WIFE 

great  power  as  in  Michigan.  He  decides  where  the 
family  residence  shall  be  and  may  change  it  as  often 
as  his  pleasure,  business  or  health  dictates;  and  his 
wife  must  live  where  he  directs,  as  long  as  he  acts 
in  good  faith,  and  in  spite  of  an  ante-nuptial  con- 
tract to  the  contrary.  This  is  an  illustration  of  the 
elementary  principle  of  law  that  fraud  vitiates 
everything. 

But  she  has  the  right  to  live  with  him,  and  he 
cannot  banish  her  to  a  lonely  or  obscure  place;  nor 
can  he  take  her  to  a  place  where  her  health  is  en- 
dangered, for  this  would  be  cruelty;  nor,  perhaps, 
can  he  remove  her  from  her  native  land  or  make  her 
live  with  his  relations. 

Consequently,  a  husband's  domicile  is  usually 
the  place  where  he  has  established  his  family,  al- 
though during  his  absence  his  wife  has  moved,  and 
the  wife's  domicile,  except  in  certain  cases  where 
she  has  a  separate  domicile  for  divorce,  is  that  of 
her  husband.  So  the  husband  may  decide  who  shall 
visit  the  family  home  and  may  prevent  its  being 
used  for  purposes  of  prostitution,  or  illegal  liquor 
selling,  although  it  belongs  to  the  wife.  How  far 
he  may  use  force  in  restraining  her  is  not  precisely 
settled.  But  there  can  be  no  doubt  that  he  may  ex- 
ercise as  much  power  as  may  be  reasonably  neces- 
sary to  prevent  her,  as  well  as  other  inmates  of  the 
house,  from  making  it  a  brothel.  The  common  law 
doctrine  is  that  the  wife  is  under  the  husband's 
protection,  influence,  power  and  authority,  and  that 
he  is  the  head  of  the  household.  When  the  husband 
is  insane  or  absent  the  wife  is  the  head  of  the  family. 
The  husband  being  the  head  of  the  family,  the  wife 
and  children  generally  adopt  his  family  name — by 
custom,  the  wife  is  called  by  the  husband's  name. 
But  whether  marriage  shall  work  any  change  of 
name  at  all,  is  after  all,  a  mere  question  of  choice, 

113 


WOMAN  UNDER  THE  LAW 

and  either  may  take  the  other's  name,  or  they  may 
join  their  names  together.  In  general,  wives  have 
surnames  by  courtesy  only,  adopted  from  their  hus- 
bands, and  it  is  inconvenient  that  they  should  have 
appellations  different  from  their  husbands. 

The  husband  as  head  of  the  family  has  a  right 
of  gentle  restraint  over  his  wife's  movements.  He 
may,  by  reasonable  measures,  enforce  cohabitation 
end  a  common  residence;  he  may  lock  her  up  to 
prevent  her  from  eloping,  or  going  into  lewd  com- 
pany and  squandering  her  money,  and  she  will  not 
be  released  on  a  writ  of  habeas  corpus;  nor  is  it  of 
itself  cruelty  if  he  prevents  her  from  visiting  her 
family,  or  relations,  or  from  going  to  church,  that 
is,  if  he  merely  prevents  her  from  going  to  a  par- 
ticular church.  But  he  has  no  right  to  confine  her 
unreasonably  or  arbitrarily,  and  if  he  does  so  she 
w^ill  be  released  on  a  writ  of  habeas  corpus;  so  if  he 
injures  her  health  by  moral  or  physical  restraint,  it 
is  cruelty.  But  a  husband  cannot  get  possession  of 
his  wife  in  any  case  by  a  writ  of  habeas  corpus,  un- 
less she  is  restrained  against  her  will.  If  the  wife  is 
an  infant,  the  husband  or  her  parents  in  the  discre- 
tion of  the  court,  may  be  awarded  custody  of  her. 

If  the  husband  is  insane,  the  wife  is  the  head 
of  the  family,  and  has  a  right,  superior  to  that  of  his 
father,  to  be  his  guardian.  But  a  wife  has  no  right 
to  lock  her  husband  up  corresponding  to  that 
of  the  husband,  above  discussed.  Though  the  old 
writers  say  that  a  husband  may  chastise  his  wife 
with  a  rod  no  thicker  than  his  thumb,  modern  law 
recognizes  no  such  right,  and  a  husband  is  not  jus- 
tified in  beating  his  w^ife  even  though  she  be  drunk 
or  insolent.  Wife  beating  in  certain  states  is  a 
special  misdemeanor. 

A  husband  is  bound  to  support  his  w^ife,  and 
a  wife  may  be  bound  to  support  her  husband;  and 

114 


HUSBAND  AND  WIFE 

husband  and  wife  may  be  bound  to  support  their 
family. 

By  the  common  law  the  husband  is  bound  to 
support  his  wife.  It  is  an  unquestionable  rule  of 
law^  that  if  a  husband  turn  his  w^ife  out  of  doors,  or 
by  his  misconduct  compel  her  to  leave  him,  she 
goes  forth  under  such  circumstances  to  the  world 
w^ith  an  implied  credit  for  necessaries.  In  other 
words,  he  is  bound  to  provide  her  with  necessary 
lodging,  clothing  and  subsistence,  and  in  case  of  her 
sickness,  medicine,  medical  attendance  and  reason- 
able expenses  incurred  during  illness;  and  if  he 
fails  to  make  such  provision,  she  may  obtain  the 
same  on  his  credit,  and  the  person  so  making  it  may 
sue  the  husband  and  recover  therefor,  even  though 
the  husband  be  a  minor.  If  old  enough  to  contract 
marriage,  a  minor  is  liable  on  contracts  for  the 
necessary  board  and  lodging  of  his  wife  and  chil- 
dren. He  cannot  charge  her  or  her  estate  with  the 
expenses  of  her  support. 

The  wife  may  enforce  her  right  to  support 
directly  by  a  suit  for  maintenance,  or  for  alimony 
with  divorce,  or  indirectly,  by  pledging  his  credit  to 
others  who  supply  her  with  necessaries. 

The  husband's  neglect  of  this  duty,  if  it  results 
in  her  death,  is  manslaughter  at  least;  and  some- 
times a  husband's  failure  to  support  is  punishable 
criminally  by  statute;  and  by  statute  it  may  be  a 
cause  for  divorce.  The  obligation  cannot  however 
be  enforced  if  the  wife  has  sufficient  means  of  her 
own,  or  has  waived  or  forfeited  her  rights.  She  may 
waive  her  rights  for  valuable  consideration,  as  in  a 
deed  of  separation.  She  forfeits  them  by  leaving 
her  husband  against  his  w^ill  when  he  is  not  in  fault. 
To  illustrate: — A  wife  left  her  husband's  house 
without  his  consent  and  without  justification,  and 
went  to  the  house  of  the  plaintiff  with  her  nursing 

115 


WOMAN  UNDER  THE  LAW 

babe,  and  the  husband  made  repeated  efforts  by 
himself  and  through  others  to  procure  her  return 
and  tried  to  induce  the  plaintiff  to  assist  him,  in 
the  same  purpose,  but  the  plaintiff  made  no  en- 
deavor to  persuade  her  to  go  back  to  her  husband, 
and  forbade  the  husband  coming  to  his  house.  It  was 
held  in  Illinois  that,  in  the  absence  of  any  express 
agreement  to  pay,  the  husband  was  not  liable  to  the 
plaintiff  for  the  board  and  lodging  of  the  wife  and 
child.  She  may  also  waive  her  rights  if  her  husband 
leave  her  for  her  fault.  To  illustrate, — If  a  husband 
has  put  away  his  wife  for  adultery,  he  is  not  liable, 
even  for  necessaries  supplied  to  her,  if  it  be  proved 
on  the  trial  of  an  action  for  the  price  of  such  neces- 
saries that  she  has  been  guilty  of  adultery.  She 
does  not  w^aive  her  rights  however,  by  becoming 
insane;  "For  that  is  no  fault  of  hers,"  according  to 
an  Alabama  decision. 

The  husband's  obligation  to  support  his  wife 
is  not  destroyed  by  married  w^omen's  separate  prop- 
erty acts,  except  so  far  as  through  them  she  has 
means  of  her  own  and  if  she  has  such  provision  it 
lies  on  the  husband  to  show  it.  The  right  ceases 
w^ith  divorce,  but  may  continue  some  time  after 
the  husband's  death.  An  example  of  this  is  found 
in  the  old  English  statute  of  Henry  III,  ch.  7,  sec- 
tion 3,  which  provides  that  the  w^idow^  "shall  tarry 
in  the  chief  house  of  her  husband  by  forty  days 
after  the  death  of  her  husband,  within  which  days 
her  dow^er  shall  be  assigned  her."  This  was  called 
the  widow's  "quarantine." 

By  the  common  law^,  all  the  wife's  personalty, 
and  all  her  earnings  and  labor,  belong  to  her  hus- 
band, and  even  under  separate  property  acts,  she 
is  still  his  helpmeet,  and  cannot  charge  him  for 
domestic  services;  in  this  way  she  is  bound  to  sup- 
port him.     In  some  states  statutes,  which  seem  to 

116 


HUSBAND  AND  WIFE 

have  given  rise  to  no  decision  by  a  supreme  court, 
create  various  means  of  making  a  wife  support  her 
needy  husband. 

Husband  and  wife  are  both  Hable  for  the  sup- 
port of  their  family,  so  far  at  least  that  one  cannot 
recover  from  the  other  for  expenses  paid.  And 
statutes  in  Alabama  and  Iowa  make  them  jointly 
liable. 

A  wife  has  no  right  to  her  husband's  services, 
though  he  is  bound  to  support  her,  as  has  been  seen. 

At  common  law,  however,  a  husband  has  an 
absolute  right  to  his  wife's  time,  wages  and  earn- 
ings, and  the  products  of  her  labor,  skill  and  in- 
dustry. Nowhere  has  it  been  adjudged  that  her 
earnings  or  the  product  of  them,  made  while  she  is 
living  with  her  husband  and  engaged  in  no  separate 
business,  are  not  the  property  of  the  husband  when 
the  rights  of  his  creditors  have  been  asserted  against 
them.  He  may  even  contract  to  furnish  her  services 
to  others,  and  sue  for  the  price  of  them  and  for  the 
loss  of  them  in  his  ow^n  name.  She  cannot  release 
an  obligation  for  them,  except  as  his  agent,  or  by 
his  consent.  Even  if  her  earnings  have  been  in- 
vested, the  investment  is  pro  tanto  his,  and  may  be 
seized  by  his  creditors. 

The  husband  may  forfeit  this  right  by  deser- 
tion ;  the  marriage  relations  having  ceased,  the  right 
to  the  wife's  service,  which  is  an  incident  to  co- 
habitation, also  comes  to  an  end.  He  may  also 
waive  this  right  under  the  laws  of  New  Jersey,  and 
it  has  been  the  first  to  be  destroyed  by  the  statutes. 

The  husband,  in  equity,  independently  of  stat- 
ute, may  give  up  his  wife's  earnings;  this  may  be 
done  either  by  an  ante-nuptial  or  a  post-nuptial 
settlement.  The  mere  ability  to  earn  is  not  property, 
however,  and  a  husband  may,  therefore,  waive  fhe 
right  to  have  his  wife  labor  for  him,  even  as  against 

117 


WOMAN  UNDER  THE  LAW 

his  creditors ;  but  moneys  received  or  due  for  labor, 
earnings  in  the  fuller  sense,  are  property,  and  a  gift 
of  such  must  not  defraud  creditors.  If  with  the 
assent  of  the  husband,  the  wife  were  to  carry  on  any 
kind  of  business  she  would  be  entitled  to  the  profits, 
if  it  was  bona  fide  hers,  and  not  intended  to  shield 
the  husband's  propert}^  from  his  creditors;  so  no 
reason  is  perceived  why  a  husband  might  not,  if 
the  transaction  were  not  tainted  with  fraud,  permit 
his  w^ife  to  raise  and  sell  grain,  stock  and  other  farm 
products  and  receive  the  profits.  But  in  such  case 
the  transaction  would  have  to  be  fair  and  free  from 
fraud  as  to  creditors. 

The  burden  of  proof  lies  upon  the  wife  to 
clearly  prove  the  gift,  for  her  earnings,  as  has  been 
seen,  belong  prima  facie  to  the  husband. 

Married  women's  property  acts  which  do  not 
refer  expressly  to  earnings,  do  not  change  the  hus-  «-- 
band's  common  law  rights  in  the  same.  So  a  statute  r^* 
which  provides  that  a  married  woman  may  earn 
money  on  her  separate  account,  does  not  affect  her 
earnings,  unless  it  appears  that  they  were  acquired 
by  her  on  her  separate  account.  Under  such  stat- 
utes, the  product  of  all  labor  of  hers  for  parties 
other  than  her  husband,  belongs  to  her;  she  can 
contract  for  her  services  and  recover  on  the  con- 
tract; she  can  sue  alone  for  them,  and  make  her 
husband,  if  need  be,  garnishee;  a  debt  due  by  her 
husband  cannot  be  set  off  in  such  a  suit ;  and  neither 
her  husband,  nor  his  creditors,  have  any  right  to 
such  earnings,  though  as  with  her  other  separate 
property,  she  may  give  them  to  her  husband,  and 
such  a  gift,  it  seems  is  presumed,  if,  w^ith  her  con- 
sent, and  without  promising  to  repay  her,  he  uses 
them,  or  mixes  them  with  his  own  money. 

But  these  statutes  do  not  implicitly  authorize 
contracts  between  husband  and  wife  for  her  serv- 

118 


HUSBAND  AND  WIFE 

ices,  and  she  cannot  recover  from  him  for  services 
rendered;  though  this  may  perhaps  be  done  if  the 
statute  itself  or  some  other  statute  authorizes  con- 
tracts between  husband  and  wife.  She  is  still  bound 
without  charge  to  look  after  his  home  and  children, 
and  to  perform  the  domestic  duties  of  wife;  she  is 
still  his  "helpmeet.  " 

There  is  no  liability  of  a  wife  for  contracts  of 
her  husband,  and  a  wife  could  not  make  any  con- 
tracts at  common  law  for  her  husband  to  be  liable 
on,  though  she  could  charge  him  as  his  agent,  in 
law,  or  in  fact.  And  when,  under  statute  or  other- 
wise, a  wife  can  make  contracts,  her  husband  is  not 
liable  upon  them  as  husband,  though  he  may,  of 
course,  be  liable  if  he  joins  with  her. 

But  as  to  a  wife's  ante-nuptial  contracts,  her 
husband  comes  into  full  liability,  and  he  is  liable  on 
all  such  contracts  of  hers,  whether  he  gets  any 
property  with  her  or  not,  and  even  though  he  be  a 
minor. 

On  such  contracts  husband  and  wife  must  be 
sued  jointly.  The  husband's  liability  ceases  w^ith 
the  coverture,  unless  it  has  been  fixed  by  judgment. 
If  the  wife  dies  after  judgment  he  continues  liable; 
if  he  dies  his  estate  is  liable.  If  not  fixed  by  judg- 
ment, the  husband's  liability  is  destroyed  by  an  ab- 
solute divorce,  by  his  death,  or  by  hers.  But  mar- 
riage does  not  suspend  or  destroy  her  liability,  so 
that,  if  he  dies,  she  continues  liable;  and  if  she  dies, 
her  administrator  is  liable  to  the  extent  of  assets 
even  though  he  be  her  w^idower;  and  she  is  liable 
after  an  absolute  divorce.  The  statute  of  limita- 
tions runs  for  her  during  coverture. 

Bankruptcy  of  the  husband  at  common  law 
destroyed  any  right  to  bring  suit  at  all  during  cover- 
ture, at  law;  but  in  equity  she  could  perhaps  be 
held    liable    if    she    had    separate    property.     This 

119 


WOMAN  UNDER  THE  LAW 

liability  is  not  affected  by  any  ante-nuptial  or  post- 
nuptial agreement  between  the  husband  and  wife; 
nor  do  married  women's  statutes  destroy  the  hus- 
band's liability,  unless  they  so  state,  except  in 
Illinois.  But  in  many  states  there  are  statutes  ex- 
pressly destroying  this  liability  or  limiting  it  to  the 
amount  of  the  property  gotten  by  the  husband  from 
his  wife. 

There  is  no  liability  of  a  w^ife  as  wife  for  her 
husband's  torts,  but  a  husband  is  generally  liable  for 
those  of  his  w^ife. 

A  husband  at  common  law^  takes  his  wife  with 
all  her  liabilities,  and  he  is,  therefore,  liable  on  her 
ante-nuptial  torts,  for  the  same  reasons  and  to  the 
same  extent  as  he  is  liable  under  ante-nuptial  con- 
tracts; and  to  the  same  extent,  also,  as  he  is  liable 
for  her  post-nuptial  torts  committed  out  of  his 
presence  and  without  his  direction.  This  liability 
extends  to  acts  done  by  her  in  a  representative  capac- 
ity, for  example  as  guardian  or  administratrix.  It 
is  in  many  states  removed  by  express  statutes,  but 
the  weight  of  opinion  is  that  it  is  not  affected  by 
married  women's  property  acts. 

A  husband,  at  common  law,  is  liable  for  all 
torts  committed  by  his  wife  during  coverture;  it 
makes  no  difference  if  they  are  living  apart,  so  long 
as  he  is  really  her  husband.  But  he  cannot,  unless 
his  wife  is  agent  in  fact,  be  liable  for  a  w^rong  of  hers 
based  on  her  invalid  contract,  as  where  she  got 
credit  pretending  that  she  was  unmarried,  or  misap- 
propriated money  placed  in  her  keeping.  If  he 
allows  her  to  act  as  administratrix,  he  is  responsible 
for  all  her  torts;  but  her  unauthorized  dealing  with 
an  estate  does  not  render  him  liable  as  executor  de 
son  tort. 

For  these  torts,  a  husband  may  be  liable,  ac- 

120 


HUSBAND  AND  WIFE 

cording  to  their  character,  alone  or  jointly  with  his 
wife,  as  follow^s : 

( 1  )  If  the  tort  is  committed  in  his  presence, 
and  nothing  more  appears,  it  is  his  sole  tort,  as  she 
is  presumed  to  act  under  his  coercion. 

(2)  If  the  tort  is  committed  in  his  presence, 
but  she  appears  to  have  acted  deliberately  and 
freely,  it  is  their  joint  tort. 

(3)  If  the  tort  is  committed  in  his  presence 
and  against  his  will,  it  is  her  tort,  and  he  is  liable 
with  her. 

(4)  If  the  tort  is  committed  out  of  his 
presence,  but  by  his  direction,  she  is  jointly  liable 
w^ith  him. 

(5)  If  the  tort  is  committed  out  of  his  pres- 
ence and  without  his  knowledge  and  consent,  he  is 
liable  w^ith  her. 

Where  a  wife  spoke  slanderous  words  of  the 
plaintiff  out  of  the  presence  of  her  husband,  without 
his  knowledge  or  consent,  the  husband  was  held  to 
be  jointly  responsible  with  his  wife,  although  it  was 
urged  that  he  did  not  become  particeps  criminis, 
and  should  not  be  found  guilty  without  having  been 
accused,  and  having  an  opportunity  of  defending 
himself. 

In  cases  1 ,  2,  and  4,  just  stated  he  is  liable  be- 
cause she  is  his  agent,  and  to  the  same  extent  that 
any  master  is  for  the  act  of  his  servant.  In  cases  3 
and  5,  he  is  liable  because  she  is  his  wife,  and,  as 
is  the  case  w^ith  his  ante-nuptial  contracts  and  torts, 
his  liability,  unless  it  has  been  fixed  by  judgment, 
ceases  with  the  dissolution  of  the  marriage.  In  case 
1 ,  she  cannot  be  sued.  In  cases  3  and  5,  he  cannot 
be  sued  as  joint-wrongdoer,  but  must  be  sued  as 
husband.  In  cases  2  and  4,  they  are  jointly  liable 
for  a  joint  tort. 

The  husband's  liability  for  his  wife's  torts,  as 

121 


WOMAN  UNDER  THE  LAW 

husband,  has  been  removed  by  statute  in  some 
states;  but  such  statutes  do  not  destroy  his  liability 
in  cases  when  he  is  liable  as  master.  But  his  liability 
is  not  affected  by  general  married  women's  property 
acts,  except  in  Illinois  and  Kansas,  or  by  a  provision 
that  a  husband  shall  not  be  liable  for  his  wife's 
debts.  Still,  when  a  wife  may  sue  and  be  sued  as 
to  her  separate  property  without  her  husband,  he 
is  not  liable  for  a  tort  committed  by  or  through 
it,  unless  he  took  part  in  the  tort,  as  where  the  wife's 
farm,  for  instance,  contains  a  nuisance,  or  her  cattle 
have  committed  depredations.  But  he  is  liable  with 
her  for  conversion  w^hen  she  receives  stolen  goods 
in  the  course  of  her  separate  business,  as  she  never 
legally  acquired  the  goods.  A  husband  is  not  liable 
for  the  torts  of  an  insane  wife. 

Marriage  never  renders  a  v^ife  liable  for  the 
crimes  of  her  husband;  but  a  husband  is  liable  for 
all  crimes  of  his  wife  committed  during  coverture 
in  his  presence  and  with  his  knowledge  and  consent. 
According  to  circumstances  he  may  be  liable  as  prin- 
cipal, or  as  accessory,  and  alone  or  jointly  with  her. 
Nor  have  married  women's  statutes  changed  this 
common  law  liability  of  his. 

(  I  )  If  it  appears  only  that  a  criminal  act  was 
committed  by  the  wife  in  the  presence  of  her  hus- 
band, she  is  deemed  to  have  acted  under  his  coer- 
cion, as  she  is  under  his  power  and  he  is  liable  alone. 
In  a  recent  Massachusetts  case  a  married  woman 
was  on  trial  for  keeping  a  liquor  nuisance,  and  there 
•was  evidence  of  a  sale  made  by  her  w^hen  her  hus- 
band was  in  the  yard  outside.  It  was  held,  that  an 
unqualified  instruction  to  the  effect  that  a  sale  thus 
made  was  not  made  under  constraint,  was  er- 
roneous. She  is  in  legal  contemplation  in  his 
presence,  though  he  is  not  in  sight,  if  he  is  nearby 
and  she  is  acting  under  his  supervision. 

122 


HUSBAND  AND  WIFE 

(2)  If  it  appears  that  a  criminal  act  v/as  com- 
mitted by  the  wife  in  the  presence  of  her  husband, 
but  of  her  own  free  will,  he  is  jointly  liable  with 
her,  for  it  is  his  duty  and  right  to  prevent  her  from 
doing  wrong,  with  force  if  need  be.  How  far  he 
may  exercise  force  in  restraining  her  is  not  precisely 
settled.  But  there  can  be  no  doubt  that  he  may 
exercise  as  much  power  as  may  be  reasonably  neces- 
sary under  the  circumstances.  Probably  his  bona 
fide  endeavors  to  prevent  her  from  committing  the 
crime  would  be  a  defence.  Of  course,  if  he  aids  and 
abets  her  he  is  liable;  nothing  could  be  clearer  than 
this  proposition. 

(3)  If  it  appears  that  a  criminal  act  was 
committed  by  the  w^ife  out  of  the  presence  of  her 
husband,  but  w^ith  his  concurrence  or  assent,  he  is 
liable,  just  as  any  one  is  liable  for  the  acts  of  his 
agent. 

(4)  If  it  appears  that  the  criminal  act  was 
committed  by  the  wife  out  of  the  presence  of  her 
husband,  and  without  his  knowledge  or  assent,  he 
is  not  liable  at  all.  To  illustrate:  A  husband  is  not 
criminally  liable  for  the  act  of  his  wife  in  selling 
liquor  without  a  license  when  the  sale  is  made  in 
his  absence  and  contrary  to  his  express  instructions. 

But  a  husband  cannot  be  guilty  of  conspiring 
with  his  w^ife,  unless  the  conspiracy  was  consum- 
mated before  their  marriage,  or  there  are  other  co- 
conspirators ;  this  is  a  necessary  result  of  the  merger 
of  the  wife  in  the  husband. 

The  husband  must,  generally,  except  when 
some  statute  expressly  authorizes  the  contrary,  be 
joined  in  all  suits  to  which  his  wife  is  a  party.  As 
has  been  seen,  a  husband  is  generally  liable  to  be 
sued  with  his  wife  on  her  ante-nuptial  contracts, 
and  for  her  torts,  and  to  be  prosecuted  with  her  for 
her  crimes;  he  usually  sues  with  her  on  her  con- 

123 


WOMAN  UNDER  THE  LAW 

tracts,  and  for  injuries  to  her,  in  fact  he  is  commonly 
joined  with  her  in  all  her  suits.  He  is  also  liable 
alone  as  husband  for  her  wrongs  done  in  his  pres- 
ence and  he  has  the  right  to  sue  alone  for  any  in- 
fringement of  his  conjugal  rights  to  her  services, 
affection  and  fidelity;  and  hence,  arise  rights  of 
action  against  one  who  injures  his  w^ife  or  entices 
her  away  from  him  or  has  sexual  intercourse  with 
her;  and  these  rights  of  action  will  hereafter  be 
separately  discussed. 

If  one  spouse  wrongfully  left  the  other,  the 
latter  could  formerly  bring  suit  in  the  English  ec- 
clesiastical court  to  compel  cohabitation,  and  this 
vras  called  a  suit  for  restitution  of  conjugal  rights. 
Such  a  suit  may  still  be  brought  in  England,  but  it 
is  unknown  in  the  United  States  where  cohabitation 
cannot  be  directly  enforced.  No  court  in  this  coun- 
try has  any  power  to  compel  discordant  husbands 
and  wives  to  live  together. 

A  husband  is  bound  to  support  his  w^ife,  unless 
she  has  forfeited  her  right,  or  waived  it,  and  unless 
she  can  support  herself ;  where  a  husband  abandons 
his  wife  w^ithout  just  cause  and  casts  her  upon 
society  destitute  of  the  means  of  subsistence,  a  court 
of  chancery,  as  an  original  ground  of  equity,  w^ill 
entertain  a  bill  filed  against  him  for  alimony.  In 
some  states  there  are  special  statutes  authorizing  a 
wife,  w^ho,  w^ithout  fault  on  her  part,  is  left  w^ithout 
means  of  support,  to  sue  her  husband  for  mainte- 
nance. If  a  husband  by  his  extreme  cruelty,  renders 
it  justifiable  for  his  wife  to  live  apart  from  him,  she 
may  maintain  an  action  against  him  for  a  suitable 
separate  support,  w^ithout  applying  for  a  divorce. 
In  some  states,  courts  of  equity,  in  the  exercise  of 
their  ordinary  equity  powers,  grant  alimony  w^ithout 
divorce.  To  sustain  her  action,  the  wife  must  be 
living  apart  from  her  husband  without  fault,  and 

124 


HUSBAND  AND  WIFE 

must  be  without  support.  She  cannot  maintain  her 
suit  when  she  is  in  fault. 

The  procedure  in  general  is  like  that  in  suits 
for  alimony  w^ith  divorce;  it  ail  depends  upon  stat- 
utes and  the  rules  of  court.  The  suit  must  be  in- 
stituted during  the  husband's  life,  and  abates  on  his 
death;  the  marriage  relations  have  then  ceased.  If 
a  divorce  suit  is  regarded  as  a  suit  in  rem,  the  res  is 
the  marriage  status,  and  is  completely  destroyed  by 
death.  If  it  is  regarded  as  a  personal  suit,  it  is  one 
which  the  injured  husband  or  wife  alone  can  pros- 
ecute. 

Inasmuch  as  a  husband  is  bound  to  support 
his  wife,  unless  she  has  forfeited  or  w^aived  this 
right,  or  has  adequate  means  of  her  own,  w^hen  he 
neglects  to  support  her,  whether  they  are  living  to- 
gether or  apart,  she  may  pledge  his  credit  for  neces- 
saries; he  is  bound  to  reimburse  anyone  supplying 
her  with  such.  In  such  cases  the  husband's  liability 
is  due  to  the  fact  of  his  marriage,  and  he  cannot 
relieve  himself  thereof  by  prohibiting  his  wife  from 
pledging  his  credit,  or  by  a  general  new^spaper  ad- 
vertisement that  he  will  not  be  liable  for  her  debts, 
OT  by  special  notice  to  the  party  who  supplies  her 
not  to  give  her  credit. 

A  husband  is  not  thus  liable  by  the  mere  fact 
of  his  marriage  if  the  w^ife  has  sufficient  means  of 
her  own,  or  is  provided  for  in  any  other  manner;  for 
example,  if  supported  by  someone  else.  By  a  bare 
deed  of  separation,  a  wife  does  not  waive  this  right, 
but  only  by  agreeing  upon  an  adequate  allowance 
w^hich  is  duly  paid.  She  forfeits  her  right  if  she 
commits  adultery,  or  by  wrongfully  leaving  him 
against  his  will ;  for  instance : —  If  a  wife  elopes  with 
an  adulterer,  or  even  if  she  elopes  from  her  husband 
without  cause,  the  husband  is  not  liable  upon  her 
contracts.     In  the  absence  of  any  special  promise  of 

125 


WOMAN  UNDER  THE  LAW 

the  husband  to  pay  for  the  board  and  lodging  of  his 
wife,  living  apart  from  him,  to  a  third  person,  he 
■will  not  be  responsible  therefor,  unless  she  was  liv- 
ing separate  from  him  by  his  consent,  or  his  con- 
duct was  such  as  to  justify  her  in  leaving  his  bed 
and  board.  Necessaries  in  this  connection  are 
articles  bona  fide  purchased  for  use  and  not  for  or- 
nament, which  are  really  needed,  and  which  are  con- 
sistent with  the  social  position  and  condition  in  life 
in  which  the  party  moves.  A  husband  was  held  not 
liable  for  the  rent  of  a  church  pew  hired  and  occu- 
pied by  his  wife  without  his  assent,  and  it  was  de- 
cided that  religious  instruction  does  not  belong  to 
the  class  of  necessaries  as  that  term  is  used  in  the 
common  law.  Following  are  a  few  examples  of 
w^hat  may  be  deemed  necessaries:  food,  clothing, 
furniture,  medical  services  and  legal  services  under 
certain  circumstances.  Money  loaned  to  the  wife, 
even  if  used  for  necessaries,  is  not  regarded  as  a 
necessary.  For  his  wife's  funeral  expenses  a  hus- 
band is  always  liable,  though  at  the  time  of  her 
death  she  lived  apart  from  him  for  her  fault — the 
husband  surviving  is  bound  to  bury  the  corpse  of 
his  wife. 

The  wife's  right  to  pledge  her  husband's  credit, 
which  is  based  upon  his  marital  duty  to  support  her 
must  be  distinguished  from  her  analogous  right, 
which  is  based  on  his  holding  her  out  as  his  agent. 
In  the  latter  case  his  liability  is  a  mere  question  of 
fact,  and  he  cannot  be  held  responsible,  unless  he 
has  expressly  or  impliedly,  by  long  mandate  or  sub- 
sequent ratification,  authorized  her  to  pledge  his 
credit,  or  has  so  conducted  himself  as  to  estop  him 
from  denying  his  authority.  In  such  cases  he  is 
liable  not  only  for  necessaries  but  for  any  purchases. 

Under  the  common  law,  on  the  application  of 
a  wife,  who  showed  herself  to  be  in  danger  from  her 

126 


HUSBAND  AND  WIFE 

husband,  a  court  of  equity  would  grant  her  a  writ, 
called  a  writ  of  supplicavit,  requiring  her  husband  to 
give  security  to  treat  her  properly.  The  writ  is  un- 
known in  the  United  States,  where  an  ordinary  bond 
to  keep  the  peace  serves  all  its  purposes. 

A  wife  has  no  right  of  action  for  injuries  to  her 
husband,  unless  under  some  such  statute  as  a  civil 
damage  act.  Perhaps  she  has  a  right  of  action 
against  one  who  entices  him  aw^ay.  Two  actions 
may  arise  in  favor  of  the  husband  out  of  an  injury 
to  the  wife,  one  in  the  right  of  the  wife,  in  which 
the  husband  and  wife  sue  jointly  for  the  direct  in- 
juries to  her,  the  other  in  the  right  of  the  husband  in 
which  the  husband  sues  alone  for  consequential 
damages  to  himself.  The  well-known  general  doc- 
trine of  the  common  law  is,  that  where  a  wrong  is 
committed  against  the  person  of  the  wife  during 
coverture,  as  by  beating  her,  slandering  her  reputa- 
tion or  by  malicious  prosecution,  she  cannot  sue 
alone.  For  injuries  to  the  wife  occasioning  to  the 
husband  a  deprivation  of  the  society  of  his  wife  or 
of  her  assistance  in  his  domsetic  affairs,  by  which  he 
is  put  to  expense,  he  may  have  his  separate  action, 
as  where  a  violent  battery  has  caused  a  long  con- 
tinued illness  of  the  wife  or  expense  in  her  cure. 
But  if  the  action  is  brought  for  her  personal  suffer- 
ing and  injury  the  husband  and  wife  must  join,  and 
care  should  be  taken  not  to  include  in  the  declara- 
tion a  statement  of  any  cause  of  action  for  which  the 
husband  alone  w^ould  be  entitled  to  recover. 

Since  these  suits  are  in  different  rights,  hus- 
band and  wife  cannot  be  joined.  Recovery  in  one 
suit  is  conclusive  as  to  the  right  to  recover  in  the 
other,  but  no  damages  can  be  allowed  in  the  one 
which  are  allowable  in  the  other. 

A  husband  is  entitled  to  his  wife's  society,  as 
well  as  her  services,  and  against  any  one  who,  by 

127 


WOMAN  UNDER  THE  LAW 

abducting  her  or  inducing  her  to  leave  him,  or  keep- 
ing her  separate  from  him,  deprives  him  of  her 
society  and  services,  he  has  a  right  of  action.  There 
are  numerous  cases  in  which  the  right  of  action  of 
the  persons  bringing  about  the  loss  of  the  wife's 
society  to  the  husband  is  justifiable;  if  the  w^ife  has 
a  ground  for  divorce  against  her  husband,  and  a 
stranger,  being  consulted  by  her,  or  a  parent  advises 
her  to  leave  him  and  get  a  divorce,  and  acting  on 
such  advice  she  does  so,  the  husband  has  no  right  of 
action.  Parents  are  justified  in  opening  their 
daughter's  eyes  to  the  bad  character  of  their  hus- 
bands if  they  use  no  misrepresentations.  Harboring 
a  wife  may  be  justifiable,  w^hen  causing  a  separation 
w^ould  not  be.  The  motives  of  the  harborer  are  im- 
portant and  must  not  be  to  separate  husband  and 
wife;  those  of  a  parent  are  presumed  good.  The 
motives  are  show^n  in  such  acts,  in  addition  to  giving 
shelter  as  concealing  the  wife,  or  denial  of  access  to 
the  husband.  The  husband  must,  in  the  case  of 
mere  detainer,  show  demand  and  refusal.  A  wife 
is  entitled  to  the  society  of  her  husband,  and  w^hen 
she  may  sue  w^ithout  her  husband  for  injuries  to 
her,  she  may  sue  one  w^ho  separates  her  and  her 
husband.  At  common  law,  a  wife  could  not  main- 
tain an  action  against  a  defendant  for  having,  by 
his  wrongful  acts,  advice  and  persuasion,  induced 
her  husband  to  abandon  and  become  separate  from 
her,  whereby  she  is  deprived  of  his  society,  support, 
maintenance  and  help.  Damages  awarded  in  such 
an  action  as  might  be  brought,  should  cover  the 
value  to  the  plaintiff  of  the  spouse  w^hose  society  has 
been  lost,  as  well  as  actual  pecuniary  loss,  if  any. 

Inasmuch  as  the  husband  has  the  exclusive 
right  of  sexual  intercourse  with  his  wife,  necessarily 
he  has  a  right  of  action  against  anyone  w^ho  commits 
adultery  with  her. 

128 


HUSBAND  AND  WIFE 

I  apprehend  the  law  to  be  that  the  husband  will 
be  entitled  to  recover,  unless  he  has,  in  some  degree, 
been  a  party  to  his  own  dishonor,  either  by  giving  a 
general  license  to  his  wife  to  conduct  herself  as  she 
pleased  with  men  generally,  or  by  assenting  to  the 
particular  act  of  adultery  with  the  defendant,  or  by 
having  totally  and  permanently  given  up  all  the  ad- 
vantage to  be  derived  from  her  society. 

(  1  )  Under  statute  the  husband's  action  may 
form  a  part  of  a  divorce  suit  for  adultery,  the  com- 
plaining husband  making  his  wife's  paramour  co- 
respondent with  her,  and  asking  for  damages  from 
him.     It  is  in  the  nature  of  a  personal  suit. 

(2)  In  the  declaration,  the  adultery  need  not 
be  so  specifically  alleged  as  in  divorce  cases ;  counts 
for  loss  of  services,  and  for  loss  of  society  may  be 
joined,  but  proof  of  neither  is  necessary  to  support 
the  suit.  The  gist  of  the  action  is  the  adultery  or 
criminal  conversation.  The  sole  defence  seems  to 
be  that  the  plaintiff  consented  to  the  wife's  adultery 
with  the  defendant,  or  consented  to  her  living  as  a 
prostitute.  Numerous  other  defences  have  been 
attempted.  It  is  no  defense  that  the  plaintiff  was 
living  apart  from  his  wife  before  the  adultery  com- 
plained of. 

The  adultery  is  proved  as  in  divorce  cases.  The 
w^ife  can  generally,  testify  as  we  have  seen. 

The  damages  allowed  in  suits  for  criminal  con- 
versation are  penal  rather  than  compensatory,  for 
the  plaintiflF  is  entitled  to  substantial  damages 
though  he  prove  no  resulting  expense  or  loss  of 
society  or  services.  They  are  often  exemplary  or 
punitive.  The  jury  considers  the  value  of  the  w^ife, 
and,  in  that  connection,  how  much  the  husband 
saw  of  her  and  cared  for  her,  her  easy  fall,  and  how 
far  it  was  caused  by  the  plaintiff's  disregard  of  his 

129 


WOMAN  UNDER  THE  LAW 

marriage  obligations.  In  an  action  for  the  seduction 
of  the  plaintiff's  wife,  it  is  competent  for  the  de- 
fendant to  prove,  under  an  answer  of  general  denial 
in  mitigation  of  damages,  that,  owing  to  the  wicked 
and  depraved  disposition  of  the  plaintiff,  he  and  his 
wife,  before  the  alleged  improper  intimacy,  lived 
unhappily  together  and  that  he  had  been  in  the 
habit  of  treating  her  with  extreme  cruelty.  The  jury 
may  consider  the  dishonor  of  his  bed,  the  doubts 
cast  on  the  pedigree  of  his  children,  the  loss  of  his 
wife's  comfort  and  assistance,  the  defendant  s 
wealth  if  he  used  it  to  seduce  the  wife,  to  enhance 
damages.  But  evidence  of  the  defendant's  poverty 
may  not  be  introduced  to  diminiish  them.  The  jury 
cannot  consider  the  injury  to  the  honor,  reputation, 
and  happiness  of  the  plaintiff's  family. 

There  are  statutes  in  many  states  w^hich  give  a 
right  of  action  to  anyone  who  is  injured  in  person, 
property  or  means  of  support.  In  Massachusetts  a 
husband  may  maintain  an  action  under  the  statute 
for  injury  to  his  means  of  support,  by  the  intoxica- 
tion of  his  wife,  caused  by  intoxicating  liquors  sold 
to  her  by  the  defendant;  and  a  wife  for  loss  of  the 
husband's  support  caused  by  intoxication  and  she 
may  recover  actual,  and  in  certain  cases  exemplary, 
damages.  Such  suits  are  unknown  independently 
of  statutes. 

An  agent  is  a  person  whose  act  on  behalf  of 
another,  called  the  principal,  is  duly  authorized. 
Such  authority  may  be  derived  from  the  law,  and 
an  agency  in  law  is  thus  created;  or  from  the  prin- 
cipal, in  w^hich  case  an  agency  in  fact  is  constituted. 
All  acts  which  one  spouse  may  do  for  the  other  be- 
cause they  are  husband  and  wife  are  done  by  virtue 
of  an  agency  in  law;  for  all  other  acts  which  one 
spouse  may  do  for  the  other  there  must  exist  such 

130 


HUSBAND  AND  WIFE 

other  prior  mandate,   contemporaneous   assent  or 
subsequent  ratification — an  agency  in  fact. 

(a)  In  Law. — A  logical  application  of  the 
common  law  fiction  that  husband  and  wife  are  one, 
would  make  all  of  the  acts  of  one  in  law  the  acts  of 
the  other;  but  as  the  wife's  normal  status  is  one  of 
lost  identity  and  legal  disability,  her  acts  are  not 
legally  acts  at  all,  and  bind  no  one.  Only  when  the 
husband's  disregard  of  his  conjugal  obligations  ren- 
ders her  condition  abnormal,  has  she  authority  in 
law  to  act  for  him — as  w^hen  he  refuses  to  support 
her  and  she  pledges  his  credit.  On  the  other  hand, 
the  husband  does,  at  common  law,  cover  and  stand 
in  the  place  of  his  wife.  He  may  for  example,  re- 
lease an  ante-nuptial  debt  due  her,  and  notice  to  him 
may  be  notice  to  her.  Besides  this  common  law 
agency  of  the  husband,  statutes  in  some  states  give 
him  some  authority  to  deal  with  his  wife's  separate 
property. 

(b)  In  Fact. — There  is  nothing  in  the  mar- 
riage relation  to  prevent  one  spouse  from  being 
agent  for  the  other,  though  the  unity  of  husband  and 
wife  may  render  void  a  contract  between  them  for 
compensation;  and,  therefore,  whatever  a  husband 
can  do  through  any  agent,  he  can  do  through  his 
wife,  and  a  wife  who  may  act  by  agent  at  all  may 
act  by  her  husband  as  her  agent. 

1  am  now  dealing  mainly  with  agency  in  fact 
of  the  husband.  I  shall  discuss  his  agency  in  law 
under  his  marriage  rights  over  her  person  and  prop- 
erty in  subsequent  paragraphs.  His  authority  is 
co-determined  with  these  rights.  Thus,  he  may  sue 
for  her  earnings,  because  he  is  entitled  to  them  by 
law;  and  for  the  same  reason,  at  common  law,  his 
receipt  for  a  legacy  to  her  was  valid. 

As  her  agent  in  fact,  he  must  have  her  prior 
authority,  contemporaneous  assent  or  subsequent 

131 


WOMAN  UNDER  THE  LAW 

ratification;  his  agency  may  be  revoked,  and  is 
revoked  by  her  death.  Whatever  a  married  woman 
can  do  through  an  agent  she  can  do  through  her 
husband.  A  married  woman  w^ho  has  a  separate 
estate  may  engage  her  husband  to  act  as  her  agent 
in  the  transaction  of  any  business  she  may  have, 
and  if  she  do  so,  his  acts  as  such  agent  stand  as  to 
her  and  to  the  w^orld  as  do  the  acts  of  other  agents. 
Her  authority  may  be  given  in  the  usual  modes,  by 
power  of  attorney,  by  parol,  or  by  conduct.  Whether 
it  was  given  is  a  mere  question  of  fact.  If  she 
allows  her  husband  to  use  her  property  as  his  own, 
she  is  bound  by  his  dealing  with  it,  but  not  if  he 
holds  it  wrongfully.  To  illustrate: — When  a  hus- 
band receives  payments  of  money  on  an  obligation 
to  his  w^ife,  the  possession  of  the  obligation  is 
evidence  tending  to  prove  he  has  authority  to  receive 
the  money  for  his  wife,  but  is  by  no  means  conclu- 
sive of  the  fact — he  may  have  obtained  possession 
thereof  surreptitiously,  and,  hence,  with  no  warrant 
to  receive  payment  for  her.  Most  difficulty  is  found 
where  the  w^ife,  by  her  conduct,  appoints  her  hus- 
band agent.  To  illustrate: — If,  w^ithout  objection, 
she  sees  her  rents  paid  to  him,  or  sees  him  sell  her 
chattels,  she  is  bound  by  estoppel;  but  she  cannot 
be  bound  by  estoppel  w^here  she  could  not  have 
been  bound  directly. 

The  purposes  for  which  a  wife  may  employ 
her  husband  as  agent  are  innumerable;  he  may  be 
her  clerk,  the  master  of  her  vessel,  or  the  cultivator 
of  her  farm.  A  wife  cannot  ratify  what  she  could 
not  have  authorized.  To  illustrate: — The  wife,  hav- 
ing no  power  to  consent  to  the  application  of  her 
money  to  her  husband's  debts,  has  no  power  to 
ratify  such  application,  even  on  compensation  being 
made  to  her  by  her  husband  in  property,  without 
the  allow^ance  or  approval  of  a  court  of  chancery, 

132 


HUSBAND  AND  WIFE 

or  of  the  superior  court  of  the  county  of  her  domi- 
cile. In  all  cases  of  the  husband's  agency,  the  wife 
is  entitled  to  the  benefits  and  is  bound  by  the  liabili- 
ties resulting  from  his  acts. 

As  her  agent  in  law,  the  husband  has  no  power 
to  act  for  his  wife  in  her  separate  existence,  because 
he  has  no  rights  in  her  separate  estate;  therefore, 
notice  to  him  in  respect  to  the  wife's  separate  prop- 
erty is  not  notice  to  her. 

As  her  agent  in  fact,  the  husband's  powers  are 
measured  by  the  scope  of  authority  conferred.  If 
he  exceeds  his  authority,  he  is  personally  liable. 
His  agency  is  proved  as  that  of  a  stranger's,  though 
the  fact  that  he  is  husband  is  relevant,  as  in  most 
cases  the  husband  is,  or  ought  to  be,  the  fittest  per- 
son to  be  his  wife's  agent. 

There  is  no  implied  contract  that  a  wife  will 
pay  her  husband  for  his  services,  for  in  helping  to 
make  her  property  productive,  he  is  but  discharging 
his  duty  to  support  his  family.  Hence,  in  the  ab- 
sence of  an  express  agreement  to  that  effect  there 
is  no  implied  obligation  on  the  part  of  the  wife  to 
compensate  the  husband  for  his  supervision  of  and 
labor  bestow^ed  upon  her  separate  property. 

Contracts  betw^een  husband  and  wife  are  in 
most  states  void,  and,  therefore,  there  is  usually  no 
express  contract  by  a  wife  to  pay  her  husband  for 
his  services.  Many  cases  arise  where  the  husband, 
for  the  purpose  of  evading  his  creditors,  pretends  to 
be  acting  as  his  wife's  agent,  when  he  is  conducting 
a  business  of  his  own. 

A  wife  has  no  authority  in  law  to  act  for  her 
husband  except  for  the  purpose  of  realizing  her 
right  to  support;  in  all  cases  she  must  be  his  agent 
in  fact.  A  wife,  as  such,  has  no  original  or  inherent 
power  to  make  any  contract  which  is  obligatory  on 
her  husband.     No  such  right  arises  from  the  marital 

133 


WOMAN  UNDER  THE  LAW 

relation  between  them.  If,  therefore,  she  possess 
a  power  in  any  case  to  bind  him  by  her  contracts 
made  on  his  behalf,  it  must  be  by  virtue  of  an 
authority  derived  from  him,  and  founded  on  his 
assent,  although  such  assent  may  be  precedent  or 
subsequent,  and  express  or  implied;  and  this  is  the 
light  in  which  such  contracts  are  universally  viewed. 

If  a  man  places  his  wife  at  the  head  of  the 
household,  or  in  charge  of  his  business,  he  confers 
upon  her  such  powers  as  persons  in  these  positions 
usually  exercise.  By  ratifying  her  acts  on  one  oc- 
casion he  may  constitute  her  his  agent  for  future 
acts  of  the  same  kind.  In  certain  cases  he  is  es- 
topped from  denying  her  authority.  Thus,  if  he  sees 
her  selling  his  property  without  asserting  his  rights, 
he  cannot  afterwards  deny  her  right  to  sell.  So  if 
he  suffers  her  to  collect  debts  which  in  law  are  his. 

If  his  wife,  without  authority,  has  done  some 
act  for  him  and  he  subsequently  recognizes  it  as  his, 
he  ratifies  her  act  and  makes  it  his.  He  does  not, 
by  resuming  cohabitation  with  his  Avife,  ratify  her 
act  committed  during  a  separation. 

If  a  husband  is  absent  from  home  and  has  left 
his  w^ife  in  charge  of  his  house,  his  business  or  his 
property,  she  has,  as  his  agent,  such  powers  with 
respect  thereto  as  persons  in  such  positions  of  trust 
usually  exercise.  If  he  has  left  her  in  charge  of 
his  affairs,  his  private  directions  do  not  limit  her 
authority  to  act  for  him.  During  her  husband's 
absence  the  wife  is  the  head  of  the  family,  and  may 
do  all  things  relating  to  the  family  and  family  home 
w^hich  wives  usually  do.  There  seems  to  be  a  pre- 
sumption, rebuttable,  of  course,  that  if  a  business 
is  carried  on  in  the  house  where  they  live  together, 
she  is  his  agent,  and  a  jury  is  justified  in  finding  her 
agency  for  him  from  the  fact  that  she  w^as  seen 
more  than  once  in  charge  of  the  business.      The 

134 


HUSBAND  AND  WIFE 

wife  cannot  testify  as  to  the  fact  of  her  agency, 
though  the  fact  being  proved,  her  declarations  as 
his  agent  bind  him. 

Since,  by  marriage,  the  parties,  at  common 
law,  become  one  person,  and  the  husband  is  the  one, 
he  naturally  stands  in  her  place,  and  while  he  is 
husband  has  possession  and  control  of  all  property 
which  would  have  otherwise  come  into  her  posses- 
sion and  control;  but  she  has,  during  coverture  no 
estate  in  his  property.  So  that  all  the  profits  of  the 
land  they  occupy,  or  of  the  money  or  chattels  that 
come  into  their  possession,  belong  to  the  husband. 

But  courts  of  equity  very  soon  recognize  the 
wife's  separate  existence  and  preserve  for  her  sole 
and  separate  use  all  property  settled  on  her  for  this 
purpose;  and  statutes  have  now  been  passed,  almost 
everyw^here,  destroying  wholly  or  partially  the  hus- 
band's rights  over  his  wife's  property  during  cover- 
ture. 

After  marriage  the  husband  holds  his  own 
property  substantially  as  before.  During  his  life 
his  wife  has  no  present  estate,  but  on  his  death  she 
has  dower  or  other  share  of  his  realty,  and  thirds  or 
other  share  of  his  personalty,  which  estates  or  shares 
of  hers  he  cannot  defeat  by  deed  or  will. 

In  his  wife's  estates  of  inheritance,  a  husband 
has,  during  coverture,  a  free-hold  estate  jointly  with 
his  wife,  with  absolute  ownership  of  the  rent  and 
profits;  this  estate  may  be  the  estate  of  curtesy 
initiate,  or  simply  the  husband's  estate  during 
coverture  jure  uxoris.  The  estate  during  coverture 
jure  uxoris  differs  from  curtesy  initiate,  in  that  it  is 
a  vested  estate  in  possession,  while  curtesy  initiate 
is  a  contingent  future  estate,  and  it  is  independent 
of  birth  of  issue;  it  is  held  in  right  of  the  wife,  and  is 
not  added  to  or  diminished  when  curtesy  initiate 
arises. 

135 


WOMAN  UNDER  THE  LAW 

A  husband  has  this  estate  in  all  his  wife's  com- 
mon law  estates  of  inheritance  in  possession;  and 
he  has  a  joint  seisin  with  his  wife  in  all  her  estates 
of  which  she  is  seised,  whether  of  inheritance  or  for 
life,  and  whether  several  or  joint.  But  settlements 
and  statutes  have  been  chiefly  occupied  in  destroy- 
ing this  estate,  so  that,  as  a  general  rule,  a  husband 
has  no  such  estate  in  his  wife's  equitable,  separate  or 
statutory  separate  property. 

In  this  estate  he  is  seised  jointly  with  his  w^ife, 
and  while  he  can  himself  claim  the  rents  and  profits 
and  severed  personalty,  he  can  sue  in  ejectment 
only  with  her.  He  can  convey  his  interest  and  the 
same  is  liable  for  his  debts,  but  on  his  death  the 
property  passes  to  her  again  free  and  clear  from  all 
acts  of  his. 

In  his  wife's  life  estates  a  husband  has  prac- 
tically the  same  estate  during  coverture  as  he  has 
in  her  estates  of  inheritance.  If  her  estate  w^ere  for 
her  life,  it  terminated  on  her  death  and  he  took 
nothing  but  emblements;  if  her  estate  w^ere  per 
autre  vie,  he  took,  probably  as  special  occupant;  but 
in  no  case  could  he  have  curtesy.  If,  before  mar- 
riage, she  had  demised  her  life  estate  for  the  term  of 
her  life,  her  interest  is  simply  a  chose  in  action. 

In  his  wife's  chattels  real,  as,  for  example, 
lands  leased  to  her  before  or  after  marriage,  the 
husband  has,  at  common  law^,  an  almost  absolute 
estate,  w^ith  pow^ers  of  sale,  mortgage,  and  disposi- 
tion ;  but  without  any  power  to  will  them.  If  he  sur- 
vive his  wife  his  ownership  is  absolute,  just  as  his 
ownership  of  her  personalty  is;  if  she  survives  she 
takes  them  much  as  she  does  her  choses  in  action  not 
reduced  to  possession.  His  rights  in  such  estate 
may,  of  course,  be  excluded  by  an  equitable  or 
statutory  settlement. 

At  common  law,  all  the  wife's  personalty  in 

136 


HUSBAND  AND  WIFE 

possession  vests  in  her  husband  absolutely  and  he 
may  reduce  her  personalty  not  in  possession  (her 
choses  in  action)  to  possession,  and  thus  make  them 
his  absolutely.  Thus,  he  owns  absolutely  money 
in  her  possession  at  the  time  of  her  marriage. 

In  equity,  unless  the  personalty  is  settled  to 
the  wife's  sole  and  separate  use,  the  husband  has  the 
same  rights  to  his  wife's  personalty  as  at  law,  except 
that  she  may  claim  her  equity  to  a  settlement  out  of 
such  of  her  choses  in  action  as  he  comes  into  equity 
to  reduce  to  possession. 

Under  statutes,  the  husband  s  right  in  his 
w^ife's  personalty  is  frequently  destroyed.  But  a 
statute  relieving  a  wife's  property  from  her  hus- 
band's debts  has  not  this  result. 

Statutes  do  not  affect  existing  rights  in  pos- 
session, and  they  are  generally  construed  not  to 
affect  existing  rights  in  choses  in  action;  but  they 
can  destroy  the  husband's  right  to  reduce  his  wife's 
choses  in  action  to  possession. 

Personalty  in  possession  of  the  w^ife  is  in  pos- 
session of  the  husband,  unless  she  holds  it  in  a 
representative  capacity. 

Personalty  in  possession  of  the  husband  may 
still  not  be  in  his  possession  as  owner;  he  may  hold 
her  separate  personalty  as  trustee  of  the  wife,  or  as 
her  agent,  and  in  such  cases  the  personalty  so  held 
by  him  does  not  fall  into  the  class  of  personalty  in 
possession. 

The  wife's  personalty  in  possession  of  her 
agent,  trustee,  guardian,  tenant  in  common,  or  any 
one  not  holding  adversely,  is  constructively  in  pos- 
session of  her  husband.  If  a  debtor  of  a  married 
woman  pays  to  her  during  coverture  the  debt  due, 
the  payment  inures  to  the  benefit  of  the  husband 
and  the  money  becomes  absolutely  his.  And  in  like 
nnanner   the   husband   is   entitled  absolutely   to   all 

137 


WOMAN  UNDER  THE  LAW 

sums  of  money  which  may  be  received  by  a  third 
person  on  her  account  during  marriage.  But  some 
difficulties  arise  in  deciding  when  a  person  holds 
adversely.  It  is  held  in  Massachusetts  that  personal 
apparel  furnished  by  a  husband  to  his  wife,  or  pur- 
chased by  the  w^ife,  with  the  consent  of  her  husband, 
with  money  given  her  by  him  from  a  fund  formed 
by  their  joint  earnings,  remains  the  property  of  the 
husband,  and  the  w^ife  cannot  maintain  an  action 
against  a  carrier  for  the  loss  thereof. 

All  such  personalty  the  husband  owns  abso- 
lutely and  unqualifiedly. 

The  husband's  only  right  over  his  wife's  choses 
in  action  is  to  reduce  them  to  possession,  therefore, 
a  husband  cannot  dispose  of  them  by  w^ill ;  w^hen  so 
reduced  they  are  personalty  in  possession,  and  vest 
absolutely  in  him.  At  common  law^  a  husband  had 
a  naked  power  over  the  choses  in  action  of  his  w^ife, 
but  it  was  one  which  he  was  not  obliged  to  exercise, 
even  for  the  benefit  of  creditors.  This  right  of  the 
husband  over  his  w^ife's  choses  in  action  must  be 
exercised  during  coverture.  It  ceases  with  the  death 
of  either  party,  or  with  absolute  divorce.  It  w^as 
held  in  an  early  Massachusetts  case  that  marriage 
is  an  absolute  gift  to  the  husband  of  all  the  wife's 
personal  chattels  in  possession;  and  so  it  is  also  of 
choses  in  action,  if  he  reduces  them  to  possession  by 
receiving  or  recovering  them  at  law.  But  on  the 
dissolution  of  the  marriage,  either  by  the  death  of 
the  husband  or  by  a  divorce,  choses  in  action  not 
reduced  to  possession  during  the  coverture  remain 
the  property  of  the  wife.  Usually  it  is  said  that 
choses  in  action  differ  from  choses  in  possession,  in 
that  the  former  survive  to  the  wife.  Though  choses 
in  action  are  property,  they  are  not  so  far  the  hus- 
band's property  as  to  pass  under  an  assignment  of 
all  his  personal  property.     An  assignment  in  bank- 

138 


HUSBAND  AND  WIFE 

ruptcy  has  not  the  effect  of  reducing  into  possession 
a  chose  in  action  belonging  to  the  wife,  so  as  to 
destroy  her  rights  of  survivorship.  Even  though 
the  husband  get  possession  of  her  property,  it  is  a 
question  of  intent  whether  it  is  or  is  not  reduced  to 
possession.  If  the  husband  has  obtained  the  pos- 
session of  the  property  without  suit,  and  it  still  re- 
mains in  his  hands,  he  will  in  many  cases,  be  ad- 
judged the  trustee  of  the  wife.  He  may  get  posses- 
sion as  administrator,  agent  or  trustee,  but  to  reduce 
he  must  take  possession  as  husband. 

The  individuality  of  the  wife,  by  the  common 
law,  is  merged  in  that  of  the  husband,  as  we  have 
seen,  and  during  coverture,  she  could  not  hold 
property  or  exercise  property  rights.  Through  mar- 
riage, by  operation  of  law,  all  her  personalty  in  pos- 
session passed  absolutely  to  her  husband,  he 
acquired  a  right  to  reduce  her  choses  in  action  to 
possession,  and  thus  make  them  his  own;  of  her 
chattels  real  he  became  practically  absolute  owner, 
and  he  was  entitled  to  all  the  rents  and  profits  of 
her  real  estate.  She  could  not  acquire  property 
without  his  consent.  But  from  the  earliest  times, 
courts  of  equity  encroached  on  this  simple  and 
savage  system,  and  statutes  have  now  more  or  less 
abolished  it  in  every  state  where  the  common  law 
has  been  in  force. 

The  husband's  allowance  to  his  wife  for  her 
dress  and  personal  expense  is  pin  money  and  it  takes 
various  forms;  sometimes  it  takes  the  form  of  a 
gift  to  the  wife  of  her  savings  out  of  the  household 
expenses. 

A  wife's  equity  to  a  settlement  is  her  right  en- 
forcible  in  equity  to  have  a  settlement  for  the  benefit 
of  herself  and  her  children  out  of  her  equitable 
choses  in  action.  This  settlement  may  be  made  by 
a  court  of  equity  or  on  application  of  a  trustee,  or 

139 


WOMAN  UNDER  THE  LAW 

of  the  husband,  or  of  the  wife,  out  of  any  fund  over 
which  it  has  jurisdiction.  Whether  a  settlement 
shall  be  made  seems  to  be  determined  by  the  prac- 
tice of  the  particular  court,  and  to  be  within  its  dis- 
cretion. The  amount  depends  on  the  special  cir- 
cumstances of  each  particular  case.  The  children 
have  not  by  themselves  any  right  to  a  settlement. 

A  married  woman's  equitable  separate  prop- 
erty is  property  which  is  so  settled  upon  her  that 
courts  of  equity  recognize  it  during  her  coverture 
as  her  own,  unaffected  by  her  husband's  marital 
rights.  It  is  an  inseparable  incident  to  a  separate 
estate  in  the  wife  that  the  husband  has  no  control 
or  dominion  over  it,  and  the  cases  all  agree,  that 
while  no  particular  form  of  w^ords  is  necessary  to 
the  creation  of  a  separate  estate,  yet  there  must  ap- 
pear upon  the  face  of  the  instrument  a  clear  and 
manifest  intention  to  exclude  the  marital  rights  of 
the  husband.  A  trust  created  for  the  separate  use 
of  the  w^ife  may  be  declared,  either  in  express  terms, 
or  it  may  be  inferred  from  the  manner  in  v/hich  the 
property  is  to  be  enjoyed,  or  the  directions  given 
concerning  its  management.  In  the  wife's  ordinary 
equitable  estates  all  the  marital  rights  of  the  hus- 
band exist. 

In  order  that  this  estate  of  the  w^ife  may  exist, 
the  sole  requisite  is  that  the  terms  of  the  settlement 
show  that  it  was  intended  by  the  settlor  that  in  the 
property  in  question  the  husband  in  question  should 
have  no  marriage  rights.  No  technical  w^ords  are 
necessary  to  show  this  intent.  Technical  w^ords, 
it  is  true,  are  not  necessary  to  create  a  separate  es- 
tate in  the  wife,  but  adequate  language  must  be 
used,  in  making  the  gift,  to  manifest  a  decided  in- 
tention to  transfer  a  separate  interest.  It  is  not  now^ 
necessary  to  name  a  trustee.  With  reference  to  the 
wife's  powers  over  her  equitable  estate,  two  view^s 

140 


HUSBAND  AND  WIFE 

have  prevailed.  ( 1  )  That  she  has  all  the  powers 
of  a  feme  sole,  save  those  denied  her  by  the  terms 
of  the  settlement.  This  rule  prevails  in  England, 
Alabama,  Arkansas,  California,  Connecticut, 
Illinois,  Kentucky,  Maryland,  Missouri,  New  Jersey, 
New  York,  Tennessee,  Texas,  Virginia,  West  Vir- 
ginia and  Wisconsin.  (2)  That  she  has  no  powers 
save  those  given  her  by  the  terms  of  the  settlement. 
This  rule  prevails  in  Florida,  Mississippi,  North 
Carolina,  Pennsylvania,  Rhode  Island  and  South 
Carolina. 

In  some  states,  by  statute,  a  wife  has  dower  in 
leasehold  property  and  other  personalty,  but  at 
common  law  the  wife  has,  during  coverture,  no 
right  in  her  husband's  personalty,  except  her  right 
to  have  maintenance  or  alimony  out  of  it,  in  a 
proper  case  and  her  right  to  dispose  of  it,  if  aban- 
doned. He  may  give  it  away  and  do  with  it  as  he 
pleases,  if  his  act  takes  effect  during  coverture.  But 
in  most  states  he  cannot  leave  it  all  away  from  her 
by  will;  she  has  her  tw^o-thirds. 

By  an  agreement  before  marriage,  husband 
and  wife  may  vary  or  wholly  waive  their  rights  in 
each  other's  property. 

When  two  tenants  in  common,  or  joint  tenants 
marry,  the  character  of  the  estate  held  by  them  is 
not  changed,  though  each  has,  in  the  interests  of 
the  other,  the  same  estate  as  he  or  she  w^ould  if  the 
other  w^ere  a  tenant  in  common,  or  a  joint  tenant 
w^ith  some  third  party,  instead  of  with  him  or  her. 

Since,  at  common  law^,  any  personalty  of  the 
w^ife  belonged  to  her  husband,  if  he  reduced  it  to 
his  possession  during  coverture,  there  is  no  reason 
why  this  should  not  apply  to  property  in  which  he 
is  partly  interested.  And  yet  a  bequest  to  a  hus- 
band and  •v^'ife  and  a  third  party  equally  gave  hus- 
band and  wife  only  one  share,  a  moiety;  and  any 

141 


WOMAN  UNDER  THE  LAW 

chose  in  action  standing  in  their  joint  names  went 
absolutely  to  the  survivor. 

Husband  and  wife  are,  at  common  law,  one 
person,  so  that  when  realty  or  personalty  vests  in 
them  both  equally  with  a  third  party,  they  take 
together  but  one  share  a  moiety,  and  the  third  party 
takes  the  other  moiety.  That  moiety  or  in  case  the 
whole  property  vests  in  them  alone,  they  teike  as 
one  person, — they  take  but  one  estate  as  a  cor- 
poration w^ould  take.  In  the  case  of  realty,  both 
are  seised  of  the  whole,  and  each  being  thus  seised 
of  the  entirety,  they  are  called  tenants  by  the  en- 
tirety, and  the  estate  is  an  estate  by  entireties.  In 
the  case  of  personalty,  there  is  strictly  no  tenancy  by 
the  entirety,  because  personal  property  is  not  sub- 
ject to  estates  at  common  law^,  and  the  husband  has 
the  absolute  right  to  the  wife's  chattels,  which  right 
his  part  ownership  of  the  chattels  would  not  inter- 
fere with,  but  entireties  are  said  to  exist  in  chattels 
real.  In  Kentucky,  Maryland,  Iowa  and  New 
Hampshire,  statutes  have  changed  this  estate;  and 
in  Ohio  and  Connecticut  it  has  never  been  recog- 
nized. 

Estates  by  entireties  may  be  created  by  will, 
by  instrument  of  gift  or  purchase,  and  even  by  in- 
heritance. Each  tenant  is  seized  of  the  whole,  the 
estate  is  inseparable — cannot  be  partitioned; 
neither  husband  nor  wife  can  alone  affect  the  in- 
heritance,— the  survivor's  right  to  the  whole.  It  is 
the  better  view  that  married  women's  separate  prop- 
erty acts  do  not  destroy  an  estate  by  entireties.  In 
Arkansas,  Indiana,  Maryland,  Michigan,  Missis- 
sippi, Missouri,  New  York,  Pennsylvania  and  Wis- 
consin, it  is  held  that  separate  property  acts  do  not 
destroy  them.  But  in  England,  Alabama,  Illinois, 
Iowa  and  New  Hampshire  it  is,  on  the  other  hand, 
held  that  estates  by  entireties  depend  upon  the  unity 

142 


HUSBAND   AND  WIFE 

of  husband  and  wife,  and  that  the  separate  property 
acts  have  destroyed  these  unities  as  far  as  the  prop- 
erty is  concerned,  and  that  with  the  existence  of 
this  unity  estates  by  entirety  have  ceased  to  exist. 
An  absolute  divorce  renders  husband  and  wife 
tenants  in  common  in  their  estates,  the  estate  by  the 
entirety  being  thereby  destroyed. 


143 


CHAPTER  VI. 
MARRIED  WOMEN 

A  wife  was  under  the  power  and  authority  of 
her  husband  at  common  law ;  her  legal  identity  was 
merged  in  his;  and  she  had  of  herself  no  separate 
legal  existence  in  the  eye  of  the  law.  Therefore, 
all  her  contracts  were  absolutely  void ;  her  torts  and 
crimes  committed  in  her  husband's  presence  were 
his  rather  than  hers,  and  she  could  neither  sue  nor 
be  sued  without  him.  The  inconvenience  of  the 
contract  application  of  this  silly  fiction  gave  rise  to 
exceptions. 

When  a  husband  has  abjured  the  realm  under 
the  old  common  law^,  or  has  permanently  abandoned 
his  wife  to  the  state  under  the  present  law,  she  has 
most  of  the  capacities  of  the  feme  sole;  she  may 
make  contracts,  w^ills,  sue  and  be  sued. 

The  woman  has  still  a  husband,  and  is  not, 
therefore,  a  feme  sole  after  a  divorce  a  mensa  et 
thoro;  and  so  in  England  she  is  held  to  remain  un- 
der all  the  disabilities  of  coverture,  but  in  the  United 
States  a  different  rule  has  been  adopted  and  she  may 
generally  contract,  sue  and  be  sued  as  if  unmarried. 

When  one  is  outlawed,  banished,  or  imprisoned 
for  life,  he  is  civilly  dead,  and  his  w^ife  has  the 
capacity  of  a  feme  sole.  Thus,  she  may  contract, 
make  a  will,  sue  and  be  sued  as  if  unmarried. 

The  insanity,  infancy,  or  other  incapacity  of  a 
husband,  as  a  general  rule,  does  not  affect  the  per- 
sonal status  of  his  wife.  There  seem  to  be  no  cases 
just  on  this  point,  but  the  proposition  is  an  easy  in- 

144 


MARRIED  WOMEN 

ference  from  the  well  known  principles  on  this 
subject.  A  deed  by  an  infant  husband  and  his  wife 
of  her  property  is  voidable  by  him,  and  if  avoided 
by  him,  it  is  void  as  to  her  also.  A  husband's  mere 
sickness  or  inability  does  not  give  his  w^ife  pow^er  to 
act  for  him,  except  so  far  as  this  is  necessary  for  the 
support  of  his  family  or  the  preservation  of  his 
property;  and  there  can  be  no  implication  of  her 
agency  in  fact  if  he  is  insane.  But  if  he  is  insane 
and  confined  in  an  asylum  out  of  the  State,  she  has 
the  capacity  of  a  feme  sole,  just  as  if  he  w^ere  civilly 
dead.  A  statute  which  provides  that  when  from 
drunkenness,  from  profligacy  or  other  cause,  the 
husband  fails  to  provide  for  his  wife,  she  may  act  as 
if  sole,  does  not  include  insanity,  but  only  some 
cause  within  the  husband's  control. 

At  common  law  a  wife  could  act  fully  as  agent, 
executrix  and  trustee,  as  w^ill  hereinafter  be  shown. 
The  fiction  of  the  non-existence  of  wives,  in 
the  eye  of  the  law  resulted  in  great  inconvenience 
and  courts  of  equity  from  the  earliest  days  recog- 
nized the  legal  existence  of  wives  with  respect  to 
property  settled  on  them  to  their  sole  and  separate 
use;  so  that  with  respect  to  such  property  married 
women  have  always  had  many  of  the  capacities  of 
unmarried  women.  But  these  capacities  w^ere 
limited  to  the  aforesaid  property;  a  w^ife  has  no 
greater  personal  capacity  in  equity  than  at  law. 

We  must  look  to  statutes  for  the  most  part,  in 
order  to  determine  the  status  of  married  women. 
For  in  all  the  states,  the  common  law  system  of 
coverture  has  been  more  or  less  destroyed  by  legis- 
lation. The  main  difficulty  lies  in  determining  how 
far  a  particular  statute  has  modified  the  pre-existing 
common  lav/. 

When  a  party  labors  under  several  disabilities, 
each  must  be  considered  by  itself,  and  must  be  given 

145 


WOMAN  UNDER  THE  LAW 

as  great  effect  as  if  it  existed  by  itself.  In  the  ab- 
sence of  express  legislation,  neither  a  man  nor  a 
woman  attains  full  age  by  marriage;  a  marriage, 
however,  with  the  parents'  consent,  emancipates  an 
infant.  A  statute  which  enables  a  married  woman 
to  make  certain  contracts  if  of  "full  age"  means  full 
age  generally,  not  full  age  for  marrying.  The  hus- 
band of  an  infant  has  the  same  marital  rights  and 
liabilities  as  the  husband  of  an  adult.  Upon  the 
marriage  of  an  adult  with  a  w^ard  under  age,  the 
rights  and  powers  of  the  guardian  cease,  both  as 
respects  her  person  and  her  estate,  and  the  husband 
acquires  the  same  rights  and  incurs  the  same  obliga- 
tions which  he  acquires  and  incurs  in  case  his  wife 
is  of  age.  Infancy  and  coverture  are  separate  and 
distinct  disabilities,  and  each  must  be  considered  by 
itself.  They  may  exist  separately,  or  they  may  co- 
exist. When  they  co-exist,  the  removal  of  one  in 
no  way  is  the  removal  of  the  other.  And  the  same 
applies  to  insanity  and  coverture.  The  deed  of  an 
infant  married  woman  being  voidable  for  infancy, 
the  question  arises  whether  it  can  be  voided  or  con- 
firmed while  the  disability  of  coverture  continues. 
The  general  rule  at  common  law^,  and  even  under 
modern  acts  (since  the  coercion  of  the  husband  over 
the  wife  is  not  destroyed)  is  that  the  w^ife  cannot 
confirm  the  deed,  excepting  by  a  new  deed  executed 
in  accordance  with  the  married  woman's  acts  after 
attaining  full  age,  until  both  of  her  disabilities  have 
been  removed;  that  is  to  say,  until  she  has  attained 
full  age  and  coverture  has  been  terminated  by  death 
or  divorce.  A  statute  which  enables  a  w^oman  to 
confirm  her  deeds  during  coverture  does  not  com- 
pel her  to  do  so.  But  as  to  statutory  separate  prop- 
erty a  married  w^oman  may  be  estopped ;  and  it 
seems  that  by  her  conduct  during  coverture  after  at- 
taining full  age,  she  may  estop  herself  from  void- 

146 


MARRIED  WOMEN 

ing  her  deed  after  the  termination  of  coverture. 
Neither  can  she,  it  is  said,  during  coverture  disaffirm 
her  deed  by  any  act  in  pais ;  but  a  husband  can  dis- 
affirm a  deed  of  his  w^ife  in  vv^hich  he  as  an  infant  is 
joined.  Still,  by  making  another  conveyance  dur- 
ing coverture,  or  by  bringing  suit  for  the  land,  she 
may  disaffirm  her  deeds;  and  under  modern  statutes 
it  is  said  she  may  disaffirm  her  deeds  generally  dur- 
ing coverture.  She  need  not  restore  the  considera- 
tion; but  she  must  not  delay  her  avoidance  beyond 
a  reasonable  time  after  the  cessation  of  coverture. 
A  statute  validating  the  deeds  of  infant  married 
women  is  not  retrospective  in  its  operation. 

The  will  of  a  married  woman  at  common  law^ 
was,  generally,  a  mere  nullity,  because  by  marriage 
her  legal  existence  was  merged  in  that  of  her  hus- 
band; she  had  no  separate  disposing  power;  she 
^vas  not  sui  juris;  she  was  not  a  free  agent,  but  was 
under  the  pov/er  and  control  of  her  husband;  her 
incapacity  depended  also  on  the  fact  that  she  had 
nothing  to  dispose  of,  it  is  said.  The  husband 
acquires  by  the  marriage  the  right  to  use  and  oc- 
cupy, during  coverture,  lands  belonging  to  the  v^ife, 
whether  her  title  be  governed  by  the  "woman's  law" 
or  not.  The  personal  property  of  the  wife  in  her 
possession  at  the  time  of  her  marriage  vests  ab- 
solutely and  immediately  in  the  husband,  who  can 
dispose  of  it  as  he  pleases,  and  on  his  death  it  goes 
to  his  representatives.  The  disability  of  coverture 
in  respect  to  liens  differs  materially  from  that  of 
infancy,  idiocy,  or  lunacy,  and  though  it  be  re- 
moved, any  other  disability  will  remain. 

A  married  woman  at  common  law  who,  owing 
to  peculiar  circumstances,  had  the  capacities  of  a 
feme  sole,  could  make  a  will,  as  w^here  her  husband 
w^as  civilly  dead,  being,  for  example,  banished  for 
life,  but  the  adultery  and  desertion  of  her  husband 

147 


WOMAN  UNDER  THE  LAW 

did  not  enable  her  to  make  a  will.     So  when  she  was 
acting  in  a  representative  capacity,  for  example,  as 
executrix,  she  could  make  a  will,  or  w^here  she  was 
acting  for  and  in  the  place  of  another,  as  where  she 
made  a  w^ill  of  personalty  with  her  husband's  con- 
sent, or  under  a  power.     If  there  is  no  question  as 
to  the  right  of  a  married  woman  to  execute  a  pow^er 
of  any  kind,  the  law^  prescribes  no  particular  cere- 
monies  to  be  observed  in  the  execution  of  a  pow^er ; 
but  the  terms  of  the  power  may  direct  it  to  be  ex- 
ecuted by  a  note  in  writing,  or  by  v/ill  or  deed,  or 
may  prescribe  any  ceremonies  which   the  w^ill   or 
caprice  of  the  party  creating  it  may  think  proper, 
all  of  which  must  be  complied  with,  however  unes- 
sential or  unimportant  they  may  appear  to  be  in 
themselves.      A   married  w^oman   may  w^ill   realty 
even,  under  a  power  given  by  a  mere  agreement 
between  herself  and  her  husband  before  marriage, 
and  w^hen  she  acts  under  a  pow^er  the  w^hole  doc- 
trine of  disability  by  coverture  is  eliminated.      In 
executing  a  pow^er  she  need  not  conform  to  the  re- 
quirements of  married  w^omen's  statutes,  nor  have 
the  consent  or  joinder  of  her  husband;    she  may 
execute  it  in  favor  of  her  husband,  and  her  mode 
of  executing  it  and  her  right  to  do  so  are  unaffected 
by  married  women's  enabling  acts.      She  may  re- 
voke a  v/ill  made  under  a  power  by  another  subse- 
quent will;  but  any  paper  which  is  to  take  effect  as 
a  will  must  be  probated. 

Since  courts  of  equity  have  long  recognized  the 
separate  existence  and  separate  property  of  married 
women,  the  reasons  for  the  incapacity  to  will  under 
the  common  law^  do  not  exist  in  equity  and  married 
women's  vv^ills  of  equitable  and  separate  estate  are 
very  common. 

General  statutes  as  to  wills  do  not  affect  the 
capacity  of  married  women.     A  statute  authorizing 

143 


MARRIED  WOMEN 

a  wife  to  will  generally,  as  has  been  seen,  does  not 
authorize  a  will  to  her  husband;  but  the  soundness 
of  this  really  is  questionable.  A  statute  prohibiting 
a  husband  from  witnessing  his  wife's  will  does  not 
render  it  unlawful  for  him  to  be  present  when  she 
executes  it. 

In  most  of  the  states   the  Separate  Property 
Acts  provide  for  the  willing  of  separate  property. 

A  distinction  must  be  made  between  the  valid- 
ity and  the  operation  of  a  married  woman's  will. 
At  common  law  she  could  not  will;  first,  because 
she  had  no  legal  capacity,  and  second,  because  dur- 
ing her  husband's  lifetime  she  had  no  property  for 
a  will  to  act  upon;  and  on  the  one  hand  we  find  her 
wills  sustained  when  she  has  no  capacity,  as  w^here 
she  disposes  of  her  husband's  property,  whether 
held  in  her  right,  or  in  his  own,  with  his  consent, 
while,  on  the  other  hand,  w^e  find  a  perfectly  valid 
will  inoperative  as  to  certain  property,  for  example, 
to  property  w^hich  passes  to  her  by  survivorship.  It 
would  seem  that  when  her  power  to  will  is  given  by 
the  instrument  or  statute  vv^hich  secures  the  prop- 
erty to  her  separate  use,  she  can  will  the  w^hole  of 
the  same  and  defeat  the  marital  rights  of  her  hus- 
band; but  that  when  her  incapacity  to  will  is  re- 
moved by  statute  generally,  her  will  operates  only 
so  far  as  it  does  not  conflict  with  the  marital  rights 
of  her  husband.  In  probating  a  married  woman's 
will,  its  operation  must  be  limited  to  the  kinds  of 
property  which  it  is  in  her  power  to  dispose  of. 

A  husband  cannot  by  his  consent  give  his  wife 
any  personal  capacity  to  make  a  w^ill,  for  the  status 
of  married  w^omen  depends  on  the  law  and  not  on 
contract;  the  most  his  consent  can  do  is  to  enable 
her  to  dispose  by  will  of  property  wrhich  belongs 
to  him,  either  in  his  own  right  or  in  her  right,  as  her 
husband,  and  it  seems  that  this  applies  only  to  per- 

149 


WOMAN  UNDER  THE  LAW 

sonal  property.  The  assent  is  generally  revocable 
by  the  husband  at  pleasure,  until  the  will  is  pro- 
bated; it  is  revoked  by  his  death,  and  he  must,  there- 
fore, survive  her  to  render  the  will  good.  Generally 
under  the  statutes  the  husband's  assent  is  not  neces- 
sary for  any  purpose. 

The  principles  applicable  to  wills  of  married 
women  are  generally  applicable  to  their  gifts  causa 
mortis.  A  wife  may  make  a  donatio  mortis  causa 
of  her  equitable  separate  estate,  or  of  any  of  her 
personalty  w^ith  her  husband's  consent,  and  she  may 
make  a  gift  to  her  husband  himself.  But  she  can- 
not, of  course,  give  aw^ay  what  she  has  previously 
disposed  of. 

The  same  capacity  is  required  to  revoke  a  will 
as  to  execute  it,  and  it  is  because  a  married  woman 
cannot  revoke  a  w^ill  at  common  law  that  marriage 
itself  works  a  revocation.  Any  valid  w^ill  made 
during  coverture  revokes  all  other  -wills,  so  far  as 
they  are  inconsistent  with  it.  If  she  makes  a  w^ill 
she  may  revoke  one.  A  w^ill  made  before  marriage 
by  a  w^oman  v/as  at  common  law^  revoked  by  her 
marriage.  In  many  states  the  rule  that  marriage 
revokes  any  will  is  adopted  by  statute,  and  where 
this  rule  w^as  adopted  by  statute  only  as  to  married 
women,  statutes  afterwards  passed  increasing  the 
powers  and  capacity  of  married  women  do  not 
repeal  it. 

The  death  of  a  husband  w^ill  not  revive  a  will 
made  before  marriage  and  revoked  by  marriage; 
but  there  must  be  a  republication.  A  valid  will 
made  during  coverture  remains  valid  and  does  not 
have  to  be  republished  when  the  marriage  is  dis- 
solved. An  invalid  will  made  during  coverture 
does  not  become  valid  when  the  husband  dies;  the 
wife's  intention  to  adhere  thereto  will  not  suffice; 
nothing  can  give  it  efficacy  save  a  republication.     A 

150 


MARRIED  WOMEN 

republication  means  a  re-execution,  with  all  the 
formalities  required  by  law.  A  codicil  duly  exe- 
cuted is  a  republication. 

Wills  of  real  estate  are  governed  by  the  law  of 
the  state  where  the  lands  lie ;  wills  ol  personalty  by 
the  law  of  the  testator's  domicile.  The  validity  and 
effect  of  a  w^ill  of  a  married  woman  depends  on  the 
law  which  exists  at  the  time  of  her  death,  though  its 
validity  had  been  held  to  depend  on  the  law  existing 
at  the  time  of  its  execution. 

The  law  of  contracts  requires  that  there  shall 
be  at  least  two  parties  to  every  contract,  and  that 
the  parties  shall  be  capable  of  giving  their  consent. 
In  the  first  of  these  rules,  since  at  common  law  hus- 
band and  wife  are  one  person,  lies  the  main  reason 
for  the  invalidity  of  contracts  between  them ;  in  the 
second,  since  the  wife  is  said  at  common  law  to  have 
no  will  of  her  own,  but  to  be  under  the  power  and 
control  of  the  husband,  lies  the  reason  for  the  in- 
validity of  all  contracts  of  married  women.  As  the 
unity  of  husband  and  w^ife  has  been  gradually  en- 
croached upon  in  equity  and  by  statute,  and  as  the 
disabilities  of  married  women  have  been  gradually 
directly  and  indirectly  removed,  the  number  of  con- 
tracts w^hich  a  married  woman  can  make  has  been 
gradually  increasing.  But  legislation  has  been  so 
dumb  and  blind,  and  legal  decisions  so  inconsistent, 
that  the  present  state  of  the  law  of  contracts  of  mar- 
ried w^omen  is  most  confused.  The  word  "con- 
tract" as  used  in  this  connection  includes  all  trans- 
actions between  consenting  parties,  although  deeds 
are  particularly  discussed  hereinafter. 

At  common  law,  generally,  all  contracts, 
agreements,  covenants,  promises,  and  representa- 
tions of  married  women  were  absolutely  null  and 
void.  The  grounds  of  their  invalidity,  as  we  have 
seen,  were  that  a  married  woman  had  no  legal  ex- 

151 


WOMAN  UNDER  THE  LAW 

istence,  being  merged  in  her  husband;  that  she  had 
no  separate  existence,  and  that  she  had  no  consent- 
ing capacity,  as  she  was  under  the  power  and  con- 
trol of  her  husband,  and  his  wish  was  her  law.  The 
common  law  rule,  although  for  the  greater  part 
done  away  with  by  equity  and  by  statute,  still  so  far 
exists  that  any  capacity  of  a  married  woman  to  con- 
tract is  regarded  as  exceptional,  and  the  grounds 
thereof  must  be  alleged  and  proved  by  the  one  set- 
ting it  up.  Married  women  are  still  prima  facie 
unable  to  contract  at  all. 

Under  certain  circumstances,  at  common  law 
married  women  had  the  capacities  of  unmarried 
w^omen,  and  could,  therefore,  contract  as  feme  sole. 
This  w^as  the  case  when  the  husband  w^as  an  alien 
residing  abroad,  or  when  he  had  been  banished, 
or  had  abjured  the  realm,  or  w^as  civilly  dead.  In  the 
United  States  a  permanent  departure  from  the  state, 
and  renunciation  of  his  married  rights  by  a  hus- 
band, invests  his  wife  with  the  capacities  of  a  feme 
sole,  though  w^hether  under  such  circumstances  she 
can  make  a  valid  deed  seems  to  be  disputed.  In 
Texas,  mere  separation,  if  permanent,  is  sufficient 
to  produce  this  result.  The  true  rule  seems  to  be 
that  neither  departure  from  the  state  alone  nor 
separation  alone  is  sufficient ;  but  the  husband  must 
have  renounced  his  marital  rights  and  put  himself 
permanently  beyond  the  processes  of  the  courts  of 
the  state. 

Independently  of  statute,  a  married  woman's 
personal  contracts  are  no  more  binding  in  equity 
than  they  are  at  law;  as  to  her  person  and  her 
general  property  her  contracts  are  absolutely  void, 
so  that  even  her  deed,  if  not  properly  executed  at 
law^,  cannot  be  reaffirmed,  corrected,  or  enforced  in 
equity.  But  equity  recognizes  the  separate  prop- 
erty and  existence  of  married  women,  in  most  states 

152 


MARRIED  WOMEN 

and  a  wife  is,  with  respect  to  such  property,  treated 
as  a  feme  sole  and  her  contracts  relating  to  the  lat- 
ter are  enforced  in  a  proceeding  in  rem.     Thus,  her 
contract  to  sell  her  equitable  separate  estate  is  valid, 
and  even  if  not  enforceable  against  her  specifically, 
if  she  has  received  the  purchase  money,  the  property 
is  liable  for  its  repayment;  and  a  contract,  in  con- 
sideration of  a  loan,  to  pay  it  back,  and  to  give  a 
mortgage  for  it  on  her  equitable  separate   estate, 
may  be  enforced  as  an  equitable  mortgage.     That 
is  to  say,  any  contract  charging  her  equitable  sepa- 
rate property  for  a  payment  of  money  may  be  en- 
forced against  said  property  and  such  contracts  may 
be  made  through  any  one,  including  her  husband, 
as  her  agent.     It  is  generally  held  that  her  equitable 
separate  property  is  not  liable  unless  the  wife  has 
the  right  of  disposing  of  it;  thus,  when  she  has  only 
a  life  estate  the  reversion  is  not  liable;   when  she 
cannot  dispose  of  the  whole  of  her  land,  only  the 
rents  and  profits  are  liable;   and  when  she  cannot 
dispose  of  it  at  all,  it  is  not  liable  at  all.     It  is  not 
liable  when  no  credit  is  given  to  it,  as  when  the 
credit  is  given  to  the  husband;   and  in  the  case  of 
household  expenses  the  credit  is  presumed  to  have 
been  given  to  the  husband;   it  is  not  liable  when 
there  is  no  consideration;  it  is  not  liable  if  expressly 
charged.     As  to  this,  of  course,  the  intention  need 
not  be  expressed  in  the  contract,  or  in  writing.     It 
is  liable  if  impliedly  charged.     The  intent  to  charge 
may,  except  in  North  Carolina,  be  proved  by  special 
evidence.     In  many  courts,  to  prevent  the  implica- 
tion of  a  fraudulent  intent  in  the  married  woman  at 
the  time  she  contracted  her  debts  not  to  pay  them, 
the  law  raises  a  presumption  that  she  intended  to 
pay  them  in  the  only  way  possible,  namely,  out  of 
her  separate  property;   and  such  courts    hold    her 
property  prima  facie  liable  on  all  her  contracts,  on 

153 


WOMAN  UNDER  THE  LAW 

the  doctrine  of  implied  intent.  This  presumption 
may  be  rebutted  by  showing  that  neither  party  had 
in  mind  payment  out  of  her  estate.  Very  rarely, 
however,  is  this  liability  said  to  be  independent  of 
expressed  or  implied  intent  to  charge,  as  it  is  in 
Virginia. 

It  is  liable  on  contracts  in  relation  to  it,  or  on 
the  faith  and  credit  of  it. 

But  the  only  satisfactory  way  of  determining 
the  law  in  each  particular  state  is  to  examine  the 
statutes  and  decisions  thereof. 

The  present  capacity  of  married  w^omen  to 
contract  depends  largely  on  statutes;  and  the  effect 
of  statutes,  general  and  special,  on  the  common  law^ 
rules  forms  a  most  important  subject.  Separate 
property  acts  do  not  enable  a  married  woman  to 
make  personal  contracts — this  is  universally  admit- 
ted. 

But  three  classes  of  her  contracts  have  been 
recognized  as  binding  on  her  statutory  separate 
property :  ( 1  )  contracts  which  would  bind  her 
equitable  separate  property;  (2)  contracts  which 
are  expressly  authorized  by  the  statute — as  when 
a  statute  empowers  her  to  make  contracts  relating 
to  or  with  reference  to  her  property;  (3)  contracts 
which  are  impliedly  authorized  by  statute — con- 
tracts without  the  capacity  for  making  which  she 
could  not  possess,  use  and  enjoy  her  property  as  it 
was  intended,  under  the  statute,  that  she  should. 

A  married  woman  in  California  is  incapable 
of  contracting  a  personal  obligation  except  in  cases 
provided  by  statute. 

The  common  law  disability  has  not  been  re- 
moved in  the  District  of  Columbia;  but  a  married 
woman  may  contract  to  repair  her  house, — to  put  it 
into  rentable  condition. 

Though  the  wife  may  conduct  a  mercantile 

154 


I 


MARRIED  WOMEN 

business  in  Florida  and  the  husband  may  act  as 
agent  for  her  in  that  business,  yet  she  cannot  make 
a  contract  herself,  or  by  him  as  agent,  on  which  she 
will  be  personally  liable. 

In  Georgia,  a  married  woman  is  not  liable  on 
her  note  given  for  money  borrowed  to  pay  a  pre- 
mium due  by  the  husband  upon  the  policy  of  insur- 
ance on  his  life,  where  it  is  not  shown  that  the  policy 
w^as  for  her  benefit  alone. 

In  Illinois  the  power  of  the  wife  under  the  en- 
abling laws  of  the  State  to  engage  in  trade  is  quite 
extensive. 

In  Indiana  a  married  woman  may  execute  a 
promissory  note  for  property  purchased  by  her. 

In  Kentucky  a  note  given  by  a  married  woman, 
not  for  necessaries  for  herself  and  family,  and  for 
which  credit  was  not  given  her,  is  void. 

In  Maryland  a  bond  executed  by  a  feme  covert 
alone  without  the  joinder  of  her  husband,  is  void 
and  no  action  can  be  maintained  upon  it,  either 
during  coverture  or  afterward. 

In  Massachusetts  a  married  woman  who  en- 
dorses bank  promissory  notes  at  her  husband's  re- 
quest, for  him  to  fill  up  and  use,  which  afterward 
and  in  her  absence  he  fills  up  and  negotiates  for 
value  at  a  bank,  is  liable  to  the  bank  as  endorser, 
under  the  Massachusetts  statutes,  which  give  her 
the  non-restrictive  right  to  contract  except  v/ith  her 
husband. 

In  Michigan  a  married  woman  can  make  an 
executory  contract  that  is  not  directly  connected 
with  her  estate.  But  she  may  render  herself  liable 
for  things  bought  by  her  for  family  use;  yet  she  is 
net  liable  upon  a  contract  for  the  board  of  herself 
and  husband;  she  cannot  make  a  valid  contract  for 
the  erection  of  a  building  upon  the  joint  property 
of  herself  and  husband,  but  can  contract  only  with 

156 


WOMAN  UNDER  THE  LAW 

reference  to  her  sole  or  separate  property.  A  con- 
tract in  writing  to  bind  her  must  have  been  made 
on  behalf  of  her  sole  property.  The  statutes  do  not 
authorize  a  wife  to  become  personally  liable  on  an 
executory  promise  except  concerning  her  separate 
estate. 

In  Minnesota,  the  capacity  of  married  women 
to  be  bound  and  estopped  by  their  contract  is  in- 
cident to  their  enlarged  power  to  deal  with  others 
under  Minnesota  statutes. 

The  statutes  of  Mississippi  in  relation  to  mar- 
ried women  have  not  relieved  a  wife  from  common 
law  disabilities  to  make  contracts;  unless  she  has  a 
separate  estate  she  is  subject,  as  to  her  contracts,  to 
the  disability  of  coverture ;  and  a  personal  judgment 
against  a  married  woman  in  Mississippi,  in  an  ac- 
tion against  her  on  her  promissory  note,  is  a  nullity. 

Under  the  revised  statutes  of  Missouri  a  mar- 
ried woman  may  act  as  feme  sole  as  to  her  separate 
property,  and  may  make  contracts  for  the  purchase 
of  personal  property  with  her  separate  means. 

Under  the  New  Jersey  revision  a  wife  may  con- 
tract to  sell  her  real  estate,  and  specific  performance 
thereof  will  be  decreed,  after  her  husband's  death, 
against  one  purchasing  with  knowledge  thereof. 

In  New  York  a  married  w^oman  may  carry  on 
business  and  may  make  contracts  in  the  prosecution 
thereof;  and  in  the  course  of  her  separate  business 
she  can  make  negotiable  paper  which  will  be  gov- 
erned by  the  law  merchant.  Her  contracts  may  be 
either  expressed  or  implied  and  may  be  made  either 
personally  or  by  agent,  and  when  within  the  statute 
they  w^ill  charge  her  separate  estate.  As  to  all  con- 
tracts relating  to  her  separate  estate  a  married 
woman  under  the  laws  of  New  York  stands  at  law, 
under  the  married  woman's  acts,  on  the  same  foot- 
ing as  if  unmarried. 

156 


MARRIED  WOMEN 

As  to  the  power  of  a  wife  in  North  Carolina  to 
make  contracts  which  will  charge  her  separate  es- 
tate, see  case  of  Matthews  vs.  Murchison,  1 7 
Federal  Reporter,  page  760. 

In  Ohio  the  right  to  dispose  of  property  which 
attaches  to  the  estate  of  a  married  woman  is  largely 
regulated  by  statute.  Her  separate  property  is  not 
liable  for  her  general  engagements  in  the  absence 
of  a  contract  valid  in  law  to  bind  the  same.  Except 
so  far  as  capacity  has  been  given  to  her  by  statute 
to  bind  herself  by  her  contracts  they  are  void.  She 
may  charge  her  separate  estate  at  least  to  the  extent 
that  such  liability  may  be  incurred  for  its  benefit. 

In  Pennsylvania,  the  w^ife  has  only  such  power 
over  her  personal  property  as  is  conferred  by  stat- 
ute.     All  contracts  made  by  the  wife  concerning 
her  separate  estate,  either  for  labor  or  materials  for 
improving  the  same,  are  subject  to  her  disabilities 
as  a  feme  covert,  except  where  a  case  is  made  out 
for  the  court  to  charge  her  separate  estate.     Under 
the  Pennsylvania  act,  February  29,  1872,  a  married 
woman  can  make  a  valid  judgment  note  for  a  sew^- 
ing  machine  purchased  for  her  own  use.     Under  the 
Pennsylvania  act  of  June  3,   1887,  known  as  the 
Married  Person's  Property  Act,  a  married  woman 
may  confess  judgment,  or  bind  herself  or  her  estate 
by  contract,  for  three  purposes,  viz. :  where  she  en- 
gages in  trade  or  business,  in  the  management  of 
her  separate  estate,  and  for  necessaries;   but  she 
cannot  bind  her  estate  jointly  as  a  feme  sole.    She 
cannot  enter  into  a  valid  agreement  w^ith  a  third 
person,  without  the  consent  of  her  husband,  trans- 
ferring to  a  person  a  sum  of  money  in  consideration 
of  his  obligating  himself  to  pay  her  an  annuity  out 
of  such  sum  during  her  natural  life;   and,  if  she 
does  so,  it  will  be  presumed  that  such  third  person 
knew  that  she  was  acting  ultra  vires. 

157 


WOMAN  UNDER  THE  LAW 

Under  the  South  Carolina  law,  a  married 
woman  cannot  execute  a  valid  contract  of  surety- 
ship. A  note  given  by  a  married  woman  for  money 
borrow^ed  for  her  own  use  is  valid  under  South  Caro- 
lina general  statutes;  and  a  note  given  by  her  for 
money  expended  on  account  of  her  children  at  her 
request  is  valid. 

In  Wisconsin,  married  women  have  not  been 
vested  by  statute  with  general  power  to  bind  them- 
selves or  their  separate  estates  by  the  ordinary  con- 
tract of  endorsement  of  a  note. 

The  foregoing  references  will  give  an  adequate 
idea  of  the  general  trend  of  the  statutory  law^s  of 
the  various  states.  Local  statutes,  however,  should 
always  be  consulted,  as  it  is  almost  impossible  to 
lay  down  rules  applicable  to  all  the  states.  When  a 
separate  property  act  gives  a  married  w^oman  capac- 
ity to  make  certain  specified  contracts  w^ith  respect 
to  her  property,  or  to  change  or  encumber  it  only 
by  contract  executed  with  certain  formalities,  it  im- 
pliedly restrains  her  from  making  any  others,  or 
any,  w^ithout  such  formalities,  even  in  equity;  but 
the  fact  that  courts  of  law  imply  from  the  terms  of 
a  statute  a  limited  capacity  to  contract,  does  not 
necessarily  prevent  courts  of  equity  from  recogniz- 
ing some  further  capacity.  And,  though  some 
courts  have  taken,  as  it  is  believed,  the  true  ground, 
that  equity  has  nothing  to  do  with  statutory  sepa- 
rate property,  the  majority  have  held  that  her  statu- 
tory estate  is  bound  by  her  contracts  in  equity  pre- 
cisely as  it  would  have  been  had  it  been  created  by 
a  deed  to  her  sole  and  separate  use  instead  of  by  a 
statute.  Whether  a  particular  contract  is  binding 
on  particular  statutory  separate  estate  depends  on 
the  rule  which  w^ould  determine  in  the  state  w^here 
it  was  made,  whether  the  said  contract  would  be 
binding  on  an  equitable  estate.     Thus,  in  New^  Jer- 

158 


MARRIED  WOMEN 

sey  the  contract  must  be  beneficial  to  her,  or  must 
be  an  express  charge ;  in  Kansas,  any  contract  is  ir- 
rebuttably  presumed  to  have  been  intended  as  a 
charge  and  be  binding,  etc.  Two  limitations  to  this 
liability  have  been  recognized :  ( 1  )  she  cannot 
charge  unless  she  can  convey — a  rule  which  has 
been  questioned,  but  which  prevails  as  to  her  equit- 
able separate  estate.  (2)  If  her  husband's  consent 
to  her  conveyances  is  required,  any  contract  of  hers 
to  be  a  charge  must  be  made  with  his  consent — a 
rule  also  questioned.  There  are  cases,  as  suggested 
above,  w^hich  deem  charges  as  direct  conveyances 
and  will  not  recognize  them  unless  executed  with  all 
the  formalities  required  of  a  conveyance.  A  power 
to  convey  always  includes  a  power  to  charge. 

When  the  separate  property  act  authorizes  a 
married  w^oman  to  make  contracts  "relating  to"  or 
"with  respect  to"  or  "with  reference  to"  her  sepa- 
rate property,  the  question  is,  what  contracts  do  so 
relate,  etc.?  Whether  a  contract  for  the  purchase 
money  of  certain  property  is  a  contract  relating  to 
that  property  is  disputed.  But  contracts  for  the  cul- 
tivation, improving,  stocking,  to  supply  with  tools, 
or  -with  work  horses,  of  her  separate  farm,  are  con- 
tracts relating  thereto ;  so  is  a  contract  for  furniture 
for  her  house;  but  not  a  contract  for  supplies  for 
the  family,  or  for  the  purchase  of  a  saddle  horse. 
So  a  contract  providing  for  damages  for  an  injury 
to  her  property  is  a  contract  with  reference  thereto. 
When  the  wife's  capacity  to  contract  with  reference 
to  her  separate  property  is  implied  from  her  capac- 
ity to  hold,  use  and  enjoy  the  same,  as  being  in- 
volved therein,  the  question  is,  what  contracts  are 
necessary  and  proper  to  render  her  tenure,  use  and 
enjoyment  of  the  property  as  full  and  beneficial  as 
was  intended;  whether,  when  she  may  acquire  by 
purchase,  she  may  buy  on  credit,  is  disputed;  but  if 

159 


WOMAN  UNDER  THE  LAW 

she  may  trade,  she  may  buy  and  bill  the  goods  on 
credit,  and  may  make  all  contracts  in  the  usucd 
course  of  business.  If  she  may  earn  for  her  own 
use,  she  may  buy  a  sewing  machine  to  do  her  sew- 
ing, or  a  piano  to  give  her  lessons  on.  She  may 
employ  counsel  to  litigate  her  rights  to  her  property; 
she  may  employ  servants  and  laborers  thereon;  she 
may  lease  it,  make  corrtracts  for  its  cultivation,  and 
repair,  and  for  disposing  of  its  produce.  Whatever 
is  essential  to  make  its  use  beneficial,  she  may  do. 
These  contracts,  it  must  be  remembered,  are  not 
binding  on  her  personally,  but  they  are  enforced 
against  her  property,  in  some  states  by  a  suit  at  law, 
in  others  by  a  proceeding  in  equity. 

General  statutes  relating  to  contracts,  but  not 
expressly  referring  to  married  women,  do  not  affect 
the  validity  of  married  women's  contracts,  but  ap- 
ply to  them  only  so  far  as  they  are  valid  under  other 
statutes.  To  illustrate : — A  statute  providing  that  all 
deeds  shall  be  valid  between  the  parties  though  not 
recorded,  w^ould  not  render  the  deed  of  a  married 
woman  valid;  a  statute  providing  for  the  giving  of 
a  replevin  bond  does  not  enable  a  married  w^oman 
plaintiff  to  give  such  a  bond;  a  statute  relating  to 
auction  bids  would  not  make  the  bid  of  a  married 
woman  valid;  general  insolvent  laws  have  been 
held  inapplicable  to  married  women;  a  statute  re- 
quiring the  officer  to  certify  that  the  party  execut- 
ing a  deed  was  known  to  him  does  not  apply  to 
married  women's  deeds  executed  under  another 
special  act  not  requiring  this.  On  the  other  hand, 
under  the  National  Bank  Acts  which  do  not  men- 
tion married  women,  they  are  liable  for  assessment 
on  their  stock;  and  under  statutes  defining  liability 
of  purchasers  at  mortgage  sales  without  referring  to 
married  woman,  they  have  been  held  bound. 

Statutes   which   secure   to  a  married  woman 
160 


MARRIED  WOMEN 

the  separate  use  and  enjoyment  of  her  property, 
and  which  either  do  not  refer  to  her  contracts  at 
all,  or  authorize  contracts  "relating  to,"  or  "with 
reference  to  *  such  property,  do  not  enable  her  to 
contract  generally,  but  only  in  connection  with 
such  property,  and  there  are  three  classes  of  con- 
tracts which  may  be  authorized  by  these  statutes, 
to  wit:  —  (I)  contracts  binding  the  property,  in 
equity,  as  if  it  were  equitable  separate  property; 

(2)  contracts  falling  within  the  clauses  expressly 
authorized  by  the  words  "with  reference  to,"  and 

(3)  contracts  necessary  to  the  separate  use  and  en- 
joyment of  the  property  as  secured  by  the  statute. 

A  woman's  contracts  which  would  be  binding 
on  her  equitable  separate  property  in  equity  are 
valid  as  against  her  statutory  separate  property  in 
the  same  way. 

A  married  w^oman  is  not,  with  respect  to  her 
statutory  separate  property,  a  feme  sole.  She  has 
by  implication  the  capacity  to  make  such  contracts, 
and  any  others,  which  are  necessary  to  the  exercise 
of  the  capacities,  or  the  enjoyment  of  the  rights,  ex- 
pressly given  her  by  the  statute. 

When  the  statute  authorizes  a  married  woman 
to  contract  "with  reference  to,"  or  "with  respect  to," 
her  separate  property,  her  contracts  to  be  valid  must 
be  with  reference  to  or  vv^ith  respect  to  her  said 
property. 

The  following  contracts  relate  to,  concern, 
refer  to,  and  respect  a  married  woman's  separate 
property,  to  wit:  contracts  for  the  direct  benefit  of 
the  same;  for  selling  the  property;  for  cultivating 
it;  for  improving  it;  for  stocking  it;  for  fencing  and 
repairing  it ;  for  supplying  it  with  laborers  and  with 
tools;  also  a  covenant  for  a  title  in  a  deed  of  such 
property;  also  an  agreement  for  the  sale  of  the 
same,  but  not  an  agreement  for  the  purchase  of 

161 


WOMAN  UNDER  THE  LAW 

such  property,  or  the  purchase  of  furniture  for  her 
separate  house ;  or  of  a  horse  for  her  separate  farm. 
A  contract  to  buy  a  horse  for  pleasure  riding  is  not 
a  contract  with  reference  to  her  separate  property, 
nor  is  one  for  suppHes  for  the  family,  nor  one  by 
which  money  is  borrowed  to  buy  property. 

Statutes  expressly  authorizing  or  prohibiting 
certain  specified  contracts  are  strictly  construed, 
and  respectively  neither  authorize  nor  prohibit  any 
contracts  not  specified;  but  statutes  expressly 
authorizing  specific  contracts  may,  by  implication, 
prohibit  or  authorize,  and  contracts  expressly  pro- 
hibiting certain  contracts  may,  by  implication, 
authorize  others.  Under  a  statute  which  authorizes 
one  kind  of  contract  no  other  can  be  made.  So  that 
when  a  married  woman  is  authorized  to  dispose  of 
her  property  by  sale,  she  cannot  dispose  of  it  by 
gift.  The  only  capacities  implied  are  those  which 
are  necessarily  incident  to  rights  or  capacities  ex- 
pressly given. 

Likewise  statutes  prohibiting  certain  contracts 
are  directly  interpreted,  so  that  a  prohibition  against 
contracts  between  husband  and  wife  w^ill  not  apply 
to  contracts  of  the  wife  as  authorized  by  her  hus- 
band. On  the  other  hand,  when  a  married  woman 
is  authorized  to  make  certain  contracts  with  certain 
formalities,  she  is  impliedly  restrained  from  making 
any  others.  And  a  prohibition  of  certain  contracts 
in  a  statute  may  make  clear  the  intention  of  the 
legislature  to  authorize  all  other  contracts  of  the 
class  to  which  the  prohibited  contract  belongs; 
thus,  under  a  statute  authorizing  a  married  woman 
to  acquire  property,  provided  that  no  acquisition 
from  her  husband  in  prejudice  of  the  rights  of  his 
creditors  shall  be  valid,  authorizes  her  to  acquire 
from  her  husband  in  all  cases  when  the  rights  of  his 
creditors  are  not  prejudiced. 

162 


MARRIED  WOMEN 

Under  a  statute  expressly  enabling  a  married 
woman  to  contract  as  if  unmarried,  she  may  make 
contracts  generally,  entirely  unaffected  by  her 
coverture;  when  a  statute  says  that  a  married 
woman  may  contract  as  if  unmarried,  it  is  presumed 
to  mean,  literally  and  fully,  but  it  is  doubtful 
whether  she  may  make  contracts  directly  with  her 
husband,  as  has  been  seen  in  the  chapter  on  "Hus- 
band and  Wife." 

If  a  statute  which  enables  a  married  woman  to 
contract  requires  her  contracts  to  be  executed  in  a 
certain  way,  this  requirement  must  be  substantially 
complied  with  to  give  her  contracts  any  validity. 
This  rule  will  be  discussed  fully  later.  But  if  she 
has  the  capacity  to  contract  independently  of  the 
statute  which  requires  the  formalities,  a  contract 
not  complying  therewith  may  still  be  valid. 

The  capacity  of  a  married  w^oman  to  contract 
personally,  or  as  to  movables,  depends  on  the  law^ 
of  the  place  where  the  contract  is  made;  to  contract 
as  to  immovables,  on  the  law^  of  the  place  where 
they  lie. 

The  validity  of  a  contract,  and  the  rights  of 
the  parties  thereunder,  depend  upon  the  law^  exist- 
ing at  the  time  it  is  made. 

Marriage  suspends  the  remedies  against  a  mar- 
ried woman  on  her  ante-nuptial  contracts,  or  rather 
it  makes  her  husband  liable  for  them  with  her  and  a 
judgment  recovered  on  such  a  contract  against  hus- 
band and  w^ife  can  be  satisfied  out  of  the  property 
of  either  of  them.  Her  husband's  liability  ceases 
on  her  death  or  on  divorce,  while  on  divorce  or  his 
death  her  full  liability  revives,  and  the  same  is  said 
to  be  the  effect  of  any  event  which  gives  her  the 
powers  of  a  feme  sole,  and  her  promise  during 
coverture  to  pay  an  ante-nuptial  debt  does  not  take 
such  debt  out  of  the  statute  of  limitations,  being 

163 


I 


WOMAN  UNDER  THE  LAW 

itself  void.  In  many  states  the  husband's  liability 
for  his  wife's  ante-nuptial  debts  has  been  destroyed 
by  statute,  and  her  full  liability  on  the  same  has  been 
declared. 

It  involves  some  difficult  questions  to  deter- 
mine what  is  required  of  a  woman  who  has  made  a 
contract  while  under  the  disabilities  of  coverture  to 
confirm  it. 

The  mere  fact  that  a  wife  survives  her  hus- 
band does  not  give  any  efficacy  to  her  contracts 
made  during  coverture,  though  it  has  been  held  that 
a  contract  enforceable  against  her  during  coverture 
only  in  equity  could  be  enforced  at  law  against  her 
after  coverture ;  but  her  liability  on  her  ante-nuptial 
contracts  revives,  as  her  contracts  made  during 
coverture  are  void  and  if  voidable  they  cannot  be 
ratified,  and  therefore,  according  to  the  better  view, 
her  mere  promise  to  perform  them  made  after 
coverture  (after  divorce  or  death  of  husband)  is 
w^ithout  consideration  and  void;  but  in  some  states 
the  moral  consideration  is  deemed  sufficient  to  sup- 
port and  render  valid  such  a  promise,  and  in  others 
the  courts  have  expressly  declined  to  decide  this 
point. 

Whatever  be  the  opinion  as  to  the  effect  of  an 
express  promise,  there  is  no  doubt  that  a  mere  rec- 
ognition of  the  contract  gives  it  no  new  validity. 
A  contract  enforceable  in  equity  is,  however,  ample 
consideration  for  an  express  promise;  so  is  the  sur- 
render of  a  note  void  as  to  her,  but  binding  on 
others;  so  is  a  note  given  for  an  ante-nuptial  debt. 

A  married  woman  cannot  set  up  her  invalid 
debt  by  parol,  but  she  can  confirm  her  easements 
and  debts  by  reacknowledgment  and  recording,  by 
estoppel,  and  in  Iowa,  may  ratify  her  debt  of  the 
homestead  as  if  she  had  never  been  married.     So  by 

164 


MARRIED  WOMEN 

bringing  suit  on  an  invalid  contract  she  confirms  it 
by  matter  of  record. 

At  common  law  a  married  woman  had  no  legal 
existence  and  could  not,  therefore,  have  any  legal 
representatives;  but  rather  her  legal  existence  was 
merged  in  that  of  her  husband,  and  he  was  for  all 
purposes  her  agent  in  law;  so  her  ante-nuptial  ap- 
pointment of  agent  was  revoked  by  her  marriage. 
Her  capacity  to  contract  through  an  agent  is  now 
co-extensive  with  her  capacity  to  contract  directly: 
thus,  she  cannot  make  a  contract  through  an  agent 
which  she  could  not  make  herself,  as  a  contract  with 
respect  to  her  property  not  separate;  and  she  can 
make  through  an  agent  such  contracts  as  she  could 
make  herself,  as  contracts  charging  her  separate 
estate,  or  in  the  course  of  her  business.  The  posi- 
tion of  her  husband  as  her  agent,  her  appointment 
of  attorneys-at-law,  and  her  powers  of  attorney,  are 
elsewhere  discussed. 

In  considering  the  contracts  of  a  married 
woman  it  is  important  to  distinguish  between  her 
personal  contracts,  which  bind  her  personally,  and 
her  contracts  with  reference  to  her  separate  prop- 
erty, which  are  binding  thereupon.  The  distinction 
originated  in  equity,  which  recognized  her  separate 
ownership  of  property  settled  to  her  sole  and  sepa- 
rate use,  and  her  capacity  to  charge  the  same  with 
her  contracts.  Said  contracts  were  not  enforceable 
against  her  personally,  but  only  against  the  prop- 
erty which  became  a  kind  of  artificial  person,  in  a 
proceeding  in  rem.  And  so,  under  statutes  creating 
statutory  separate  estate,  the  courts  continued  to 
hold  that  her  contracts  to  be  valid  should  be  with 
reference  to  her  estate,  and  that  mere  personal  con- 
tracts were  void  unless  expressly  authorized. 

A  promise  will  not  be  implied  by  law  when 
the  law  would  not  recognize  an  express  promise; 

165 


WOMAN  UNDER  THE  LAW 

if  she  occupies  premises,  however,  the  law  raises 
an  implied  promise  to  pay  rent.  If  she  orders  ma- 
terials, the  law  implies  a  contract  to  pay  for  them. 
But  if  she  buys  necessaries,  the  implied  promise  is 
one  of  the  husband,  for  he  is  liable  therefor.  And 
if  she  receives  money  claimed  by  another,  there  is 
no  implied  promise  to  pay  it  back. 

A  married  woman  cannot  as  a  general  rule 
contract  to  buy  or  sell  property,  because  a  contract 
to  buy  is  a  mere  personal  contract,  and  a  contract  to 
sell  is  not  one  of  the  modes  usually  specified  for  the 
disposition  of  married  women's  separate  property. 
Still  an  agreement  to  sell  is  a  contract  with  reference 
to  the  property,  and  may  be  valid  as  such.  But 
with  a  married  woman's  actual  purchases  and  sales 
it  is  different.  It  is  not  one  of  her  privileges  to  buy 
without  paying,  and  therefore  w^here  she  may 
acquire  by  purchase  she  may  buy  on  credit,  and  be 
bound  for  the  purchase  money.  A  promise  to  pay 
for  separate  property  is  a  contract  w^ith  respect  to 
her  separate  property.  So  if  she  follows  all  modes 
prescribed  she  may  sell  her  property,  and  is  bound 
by  her  acceptance  of  any  consideration.  If  her  sale 
is  void  and  the  purchaser  has  paid  her  the  purchase 
money,  it  is  generally  settled  that  he  must  bear  the 
loss.  She  may  recover  the  property  without  restor- 
ing the  purchase  money;  though  in  some  cases  this 
has  been  denied. 

The  promissory  note  of  a  married  w^oman  was 
void  at  common  law^;  a  mortgage  for  the  sole  pur- 
pose of  securing  it  was  void;  if  made  jointly  with 
another  it  was  void  as  to  her,  but  valid  as  to  her  co- 
promissor;  so  as  to  a  surety,  it  was  equally  void  in 
the  hands  of  bona  fide  assignees  for  value  w^ithout 
notice.  By  accepting  a  note  from  a  married  woman 
purchaser  a  vendor  did  not  lose  his  lien.  Now,  a 
party   endeavoring   to   enforce   a   promissory   note 

166 


MARRIED  WOMEN 

must  show  that  it  falls  within  some  equitable  or 
statutory  exception;  in  Michigan,  for  example,  it 
must  be  show^n  that  it  was  for  something  connected 
with  her  separate  estate;  in  Louisiana,  that  it  bene- 
fitted her. 

Under  an  act  enabling  a  married  woman  to 
contract  as  if  sole,  she  may  make  a  promissory  note, 
and  validly  endorse  a  note  of  her  husband's  firm, 
and  execute  a  note  in  blank,  and  be  liable,  though 
her  husband  join  with  her  and  has  been  adjudged 
bankrupt. 

Under  an  act  enabling  her  to  contract  with  ref- 
erence to  her  separate  property,  a  note  with  refer- 
ence to  something  else  is  not  valid. 

A  release  is  a  contract,  and  works  as  an  estop- 
pel, while  a  receipt  is  a  mere  statement — or  a  mere 
admission  of  payment,  and  not  conclusive.  At  com- 
mon law^  she  could  give  neither  release  nor  receipt; 
as  her  legal  existence  was  gone,  her  present  property 
rights  vested  in  her  husband. 

At  common  law  a  married  v/oman  could,  of 
course,  not  lease  property,  and  in  her  leaseholds 
her  husband  had  very  full  rights. 

When  she  can  lease  by  statute  expressly,  she 
is  liable  for  the  rent  at  will.  A  lease  is,  in  fact,  the 
purchase  of  a  term,  and  a  married  w^oman  is  liable 
for  the  rent  just  as  she  would  be  for  the  purchase 
money.  If  she  can  lease,  she  is  liable  on  an  implied 
promise  for  the  use  and  occupation  of  the  premises 
which  she  holds  after  the  expiration  of  the  lease, 
even  though  her  husband  and  family  are  living  with 
her. 

For  repairs  on  her  property,  at  common  law, 
she  was  in  no  way  liable.  And  even  for  repairs  on 
her  equitable  separate  estate  she  was  liable  only  if 
she  made  the  contract  in  such  a  w^ay  as  to  bind  her 
said  estate.     From  her  mere  knowledge  that  repairs 

167 


WOMAN  UNDER  THE  LAW 

were  being  made  on  her  property  at  her  husband's 
request,  no  promise  on  her  part  to  pay  therefor  can 
be  implied.  But  when  she  is  collecting  the  rents  of 
her  separate  property,  and  allows  out  of  them  for 
repairs,  she  is  bound.  A  contract  for  repairs  is  bene- 
ficial to  her  estate,  and  is  a  contract  with  reference 
thereto,  and  is  a  contract  which,  owing  to  her 
ownership  of  her  separate  property,  she  may  make 
by  implication. 

From  a  purchase  by  the  wife  of  family  sup- 
plies, a  promise  to  pay  on  the  part  of  the  husband 
and  not  of  the  wife  is  implied.  If  she  expressly  con- 
tracts to  pay  therefor,  she  is  liable  only  if  she  is 
liable  generally  on  her  contracts,  or  expressly 
charges  her  estate.  For  a  purchase  of  family  neces- 
saries is  not  of  itself  a  contract  w^ith  reference  to  her 
separate  estate,  nor  is  it  a  contract  which  she  can 
make  by  virtue  of  her  powers  implied  from  her 
ownership  of  her  property.  In  some  states  her 
property  is  made  jointly  liable  with  her  husband's 
for  all  family  supplies,  but  it  is  a  liability  of  her 
property  and  not  of  herself. 

At  common  law  a  married  woman  could  not 
be  a  surety  because  she  could  not  contract  at  all.  In 
equity,  though,  in  most  states  a  contract  made  with 
intent  to  charge  equitable  separate  property  there- 
with is  enforceable,  even  if  made  for  the  benefit  of 
another.  In  some  states  such  contracts  are  enforce- 
able only  if  beneficial  to  the  woman  or  the  property, 
and  surety  contracts  are  void.  But  the  general  rule 
is  that  all  deeds,  mortgages,  etcetera,  of  a  married 
woman,  made  in  accordance  with  the  law^,  are  valid, 
no  matter  whom  they  benefit;  for  a  general  power 
or  enabling  act  does  not  limit  the  married  woman  to 
contract  for  her  benefit,  but  some  statutes  expressly 
accept  suretyship  contracts,  and  under  these  a  con- 
tract of  a  married  woman  jointly  with  another  for 

168 


MARRIED  WOMEN 

his  debt  is  void  as  to  her ;  nor  is  a  contract  between 
her  and  her  husband  any  consideration  in  favor  of 
the  payee  for  her  endorsement  of  her  husband's 
note.  And  a  suretyship  contract  is  not  a  contract 
with  reference  to  her  separate  property,  unless  it  is 
charged  thereon;  nor  is  it  a  contract  which  she  is 
empowered  to  make  by  implication  from  her  power 
to  hold  and  enjoy.  The  rules  are  the  same  whether 
the  wife  becomes  surety  for  her  husband  or  for  a 
stranger.  At  common  law^  a  married  woman  had 
no  legal  existence  and  no  present  property  rights, 
and  therefore  her  deed,  whether  of  power  or  her 
own  property  was,  like  her  other  contracts,  a  mere 
nullity.  She  could  be  debarred  of  her  power  or 
divested  of  her  property  only  by  what  is  known  as 
"fine  and  common  recovery.  "  Fines  and  common 
recoveries  have  never  existed  in  this  country,  and 
do  not  now  exist  anyw^here,  but  statutes  have  taken 
their  places.  In  some  states,  independently  of 
statute,  the  joint  deed  of  husband  and  wife  has 
always  been  recognized  as  if  authorized  by  the  com- 
mon law.  Whenever  a  w^ife  held  the  position  of  an 
unmarried  woman,  as  w^hen  her  husband  was 
civilly  dead  or  had  abandoned  the  realm,  or  as  to 
her  equitable  property,  she  could  deed  her  own 
property  as  if  unmarried. 

Statutes  have  been  passed  everywhere  rela- 
tive to  married  women's  deeds  of  dower,  of  the 
reversionary  interest  in  her  realty,  and  of  her  statut- 
ory separate  estate.  These  are  statutes  expressly 
referring  to  married  women,  as  the  general  statutes 
do  not  apply  to  their  deeds,  unless  they  deed  as  if 
unmarried.  The  general  rule  is  that  a  married 
woman  can  convey  her  property  except  her  equit- 
able separate  estate,  only  in  the  mode  prescribed 
by  statute.     The  deed  must  be  guaranteed  and  cer- 

169 


WOMAN  UNDER  THE  LAW 

tified  substantially  as  required  by  the  statutes,  or 
it  is  mere  waste  paper. 

When  a  married  woman  has  the  capacity  to 
deed  her  equitable  separate  property  she  executes 
the  deed.  Unless  the  settlement  provides  otherwise, 
as  if  unmarried,  as  to  whether  or  not  she  has  the 
capacity  there  are  three  rules :  (  I  )  that  she  has  the 
capacity  unless  the  settlement  takes  it  away;  (2) 
that  she  has  not  the  capacity  unless  the  settlement 
gives  it;  and  (3)  that  she  has  the  capacity  to  deed 
away  her  estate  during  coverture,  but  not  her  rever- 
sion. Her  equitable  property,  which  is  not  separate, 
she  must  deed  as  she  does  her  legal  estate  of  the 
same  kind. 

The  general  rule  is  that  a  married  woman  has 
not  capacity  to  dispose  of  her  statutory  separate 
lands  unless  it  is  expressly  given  by  statute.  If  the 
statute  expressly  gives  her  the  power  to  dispose  of 
her  property,  but  describes  some  particular  mode  of 
its  disposition — some  particular  formalities — the 
deed  must  substantially  conform  with  the  require- 
ments of  the  statute  or  it  will  be  wholly  void.  If 
the  statute  expressly  gives  her  the  power  of  dis- 
position, but  names  no  particular  mode  of  execu- 
tion, she  may  execute  her  deed  as  if  unmarried,  and 
if  it  is  imperfect  it  may  be  confirmed,  and  w^ill  be 
valid  in  equity  just  as  the  imperfect  deed  of  a  mar- 
ried w^oman  is. 

The  husband's  joinder  in  his  wife's  deed  is 
generally  necessary  to  render  it  valid  and  is  unnec- 
essary only  when  she  is  expressly  authorized  to 
deed  as  if  sole  or  as  if  unmarried.  The  joint  deed 
of  husband  and  wife  need  not  be  executed  at  the 
same  time  and  place;  whether  he  shall  join  is  dis- 
cretionary with  him  and  he  cannot  be  compelled  to 
join;  so  it  is  a  personal  right  w^hich  cannot  be  dele- 
gated; nor  can  he  honestly  claim  compensation  for 

170 


MARRIED  WOMEN 

joining.  His  joinder  is  not  necessary  in  his  wife's 
deed  of  her  equitable  separate  estate,  when  she  has 
the  power  to  convey  as  if  sole,  nor  need  he  join  in 
her  deed  executed  under  a  special  power.  Where, 
by  statute,  a  husband  must  joint  in  his  wife's  deeds, 
she  cannot  without  him  make  a  good  deed  in  equity, 
or  a  good  agreement  to  convey. 

When  a  married  woman  executes  a  deed  un- 
der a  pow^er  she  must  directly  conform  with  the 
terms  of  the  power;  she  must  execute  it  herself; 
she  would  not  be  bound  by  another  signing  her 
name  in  her  presence,  nor  by  another  filling  in 
blanks  left  by  her,  and  she  must  acknowledge  it  in 
conformity  with  the  power,  if  the  power  refers  to 
the  mode  of  acknowledgment. 

Although  the  deed  of  a  married  woman  be  per- 
fect on  its  face,  she  may  show  that  in  fact  it  was 
obtained  by  fraud  or  duress,  or  was  improperly 
executed,  and  w^as  therefore  void. 

As  to  her  right  to  do  this  as  against  a  party  to 
the  fraud,  or  any  party  without  notice  of  the  defect 
or  fraud,  or  with  notice  of  such  facts  as  would 
put  him  on  guard,  or  on  whose  behalf  the  husband 
has  perpetrated  a  fraud,  there  is  no  doubt.  And  if 
she  in  fact  never  executed  the  deed,  and  it  is  a  for- 
gery, she  may  impeach  it  as  against  any  one ;  but  if, 
though  she  executed  the  deed  improperly,  the  cer- 
tificate is  perfect,  she  cannot,  it  seems,  impeach  it  as 
against  purchasers  w^ithout  notice,  it  being  a  general 
rule,  founded  on  public  policy,  that  defects  of 
execution  cannot  be  alleged  against  bona  fide  pur- 
chasers or  assignees  for  value  if  the  certificate  be 
perfect;  as  to  them,  in  such  cases,  the  certificate  is 
conclusive.  The  officer  who  made  the  certificate 
cannot  impeach  the  same,  nor  will  the  unsupported 
testimony  of  the  wife  be  sufficient  to  overcome  the 
certificate.     If  she  acknowledged  the  signature,  she 

171 


WOMAN  UNDER  THE  LAW 

cannot  say  she  didn't  sign  the  deed;  nor  can  she 
allege  that  she  didn't  read  or  understand  the  deed 
if  she  had  full  opportunities  for  so  doing,  and  alleges 
no  fraudulent  concealment;  nor  can  she  deny  that 
she  assented  when  she  silently  did  so;  her  declara- 
tions made  at  the  time  of  the  execution  are  evidence. 
If  she  has  duly  executed  the  deed,  and  has  left  it 
with  her  husband,  she  cannot  deny  his  offer  to 
deliver. 

Independently  of  express  statute,  a  married 
woman  may,  w^here  she  has  over  her  equitable  sepa- 
rate estate  the  powers  of  a  feme  sole,  convey  it  by 
pow^er  of  attorney.  As  to  powers  of  attorney  un- 
connected with  the  conveyance  of  land,  they  gain 
no  validity  by  the  seal  and  acknowledgment,  and 
their  validity  is  tested  as  that  of  other  contracts  of 
married  women. 

At  common  law^,  a  married  woman's  ante- 
nuptial power  of  attorney  was  revoked  by  her  mar- 
riage. It  is  commonly  said  that  a  wife's  executory 
contract  to  make  a  deed  of  property  is  absolutely 
void,  and  even  her  contract  to  deed  property  held 
by  her  as  trustee  has  been  so  held.  When  she  has 
full  ow^nership  of  her  property  or  may  contract 
generally  as  a  feme  sole,  however,  her  agreement  to 
convey  is  valid.  At  common  law^  the  husband  could 
not  by  his  agreement  to  convey  affect  the  wife's 
interest  in  her  lands,  though  such  an  agreement 
bound  him. 

One  may  be  estopped  by  a  judgment,  by  a 
deed,  by  a  contract,  or  by  a  tort ;  and  the  general  rule 
as  to  married  women  is  that  they  can  be  estopped 
only  by  valid  judgments  or  deeds;  by  contracts  only 
so  far  as  they  have  the  capacity  to  contract;  and 
only  by  torts  of  a  kind  for  which  they  would  be 
liable.  It  is  clear  that  a  married  woman  under  dis- 
abilities cannot  be  estopped  as  if  she  were  sui  juris, 

172 


MARRIED  WOMEN 

and  the  only  way  of  determining  in  what  cases  she 
may  be  estopped  is  to  ascertain,  first,  whether  the 
alleged  estoppel  arises  out  of  a  judgment,  deed,  con- 
tract, or  tort,  and  second,  whether  such  judgment, 
deed,  contract,  or  tort  is  binding  as  such  on  the 
married  woman. 

For  torts  of  any  kind,  except  those  against  the 
man  she  marries,  committed  before  marriage,  a 
woman  remains  liable  after  her  marriage;  and  her 
husband  is  generally  liable  therefor  with  her. 

For  all  torts  committed  by  a  married  woman 
during  coverture,  in  person,  except  such  as  are  com- 
mitted under  the  coercion  of  her  husband,  and  such 
as  are  intimately  connected  with  her  invalid  con- 
tracts, and  such  as  are  committed  against  her  hus- 
band, she  is  liable  as  fully  as  if  unmarried.  Thus, 
she  may  sue,  and  a  judgment  obtained  may  be  satis- 
fied out  of  her  property,  for  assault  and  battery,  for 
trespass,  for  conversion,  for  slander,  for  fraud  and 
false  and  fraudulent  representations  connected  with 
her  invalid  contracts,  for  burning  property,  for 
poisoning  geese,  and  for  various  other  causes.  But 
at  common  law  she  could  not  be  held  responsible  for 
the  act  of  another  as  her  agent,  because  she  could 
not  contract,  and  therefore  could  not  appoint  an 
agent ;  still  so  far  as  she  may,  under  statutes,  appoint 
an  agent,  or  act  by  agent,  she  may  be  responsible  for 
agents'  torts.  When  an  act  complained  of  w^as  com- 
mitted in  the  presence  of  her  husband,  the  presump- 
tion is  that  it  was  committed  by  her  through  the 
authority  and  coercion  of  her  husband,  and  that  she 
is  not  liable  at  all;  but  this  presumption  may  be 
rebutted  by  show^ing  that  she  actively  and  volun- 
tarily participated  in  the  wrong,  and  in  such  case  she 
is  as  fully  responsible  as  if  her  husband  had  been 
absent. 

In   Florida,    a   married   woman   is    personally 

liable  for  her  civil  torts,  including  such  frauds  as  do 

173 


WOMAN  UNDER  THE  LAW 

not  grow  out  of,  or  are  not  directly  connected  with, 
or  a  part  of,  a  contract  which  she  has  undertaken 
to  make. 

In  Connecticut,  an  action  for  placing  obstruc- 
tion in  a  highway  is  .maintainable  against  a  wife 
without  joinder  of  her  husband,  provided  the  tort 
was  committed  by  her  without  actual  coercion  by 
him. 

In  Indiana,  married  women  are  made  liable  to 
action  for  damages  for  their  torts;  they  take  the 
right  to  their  separate  estates  with  all  its  incidents, 
and  must  use  their  property  with  due  regard  to  the 
rights  of  others. 

In  Massachusetts,  a  husband  is  liable  for  a  sale 
of  liquor  by  his  w^ife  if  near  enough  to  influence  her. 

In  Michigan,  the  wife  is  not  chargeable  with 
the  fraudulent  intent  of  her  husband,  notwithstand- 
ing he  may  have  been  her  agent  in  the  management 
of  her  property  and  the  conduct  of  her  business. 

In  New  Jersey,  since  the  enactment  of  the 
statutes  empowering  married  women  to  transact 
business  independently  of  their  husbands,  they  are 
held  amenable  to  the  same  rules  as  other  persons  in 
reference  to  what  may  amount  to  fraud. 

In  New  York,  under  the  statutes,  the  husband 
must  be  joined  as  defendant  in  an  action  for  the 
tort  of  the  wife  (having  no  relation  to  her  separate 
property)  and  is  liable  for  recovery  had  therein. 

Under  the  statutes  of  New  York,  a  married 
woman  may  have  such  community  of  interest  with 
her  husband  in  relation  to  real  estate  as  will  render 
her  liable  for  his  frauds  relating  to  it;  and  when  he, 
professing  to  act  as  her  agent,  makes  false  represen- 
tations although  without  her  knowledge,  and  she 
receives  the  proceeds,  she  cannot  retain  the  fruits 
of  his  fraud. 

174 


MARRIED  WOMEN 

In  Pennsylvania,  a  husband  is  no  longer  liable 
for  torts  committed  by  his  wife  alone. 

In  Virginia,  where  a  wife  is  sued  as  a  sole 
debtor,  under  the  Virginia  Married  Woman's  Act, 
April  4,  1877,  in  an  action  of  unlawful  detainer, 
the  consent  or  non-concurrence  of  her  husband  can 
have  no  effect  w^hatever. 

In  Vermont,  husband  and  w^ife  are  jointly 
liable  for  her  tort,  but  his  liability  terminates  on  her 
death. 

For  her  torts  so  intimately  connected  with  her 
invalid  contracts  that  in  order  to  hold  her  liable  for 
them  her  invalid  contract  would  have  to  be  substan- 
tially enforced,  a  married  woman  is  not  responsible. 
Thus,  she  cannot  be  sued  for  getting  credit  by  false 
and  fraudulent  representations  that  she  is  unmar- 
ried (but  his  property  she  can  charge),  or  for  mis- 
using property  of  which  she  is  a  bailee,  or  for  mis- 
appropriating money  entrusted  to  her.  But  if  her 
contract  is  valid,  the  rule  does  not  apply;  thus,  she 
is  liable  for  false  and  fraudulent  representations 
made  in  effecting  a  valid  sale  of  her  separate  prop- 
erty. 

A  married  w^oman  continues  liable  for  any 
crime  committed  before  her  marriage,  and  during 
coverture  may  render  herself  liable  to  prosecution 
for  any  crime  as  if  unmarried,  with  the  following 
exceptions :  (  1  )  she  cannot  be  guilty  of  conspiracy 
with  her  husband;  (2)  or  of  larceny  for  appropriat- 
ing his  goods;  (3)  she  cannot  be  prosecuted  for  re- 
ceiving goods  her  husband  has  stolen;  (4)  or  for 
aiding  him  to  escape  detection  in  a  crime  he  has 
committed. 

To  convict  a  married  woman  for  an  act  which 
would  be  criminal  were  she  unmarried  when  it  was 
committed,  it  must  affirmatively  appear  ( 1 )  that 
her  husband  was  absent  at  the  time,  for  from  his 

175 


WOMAN  UNDER  THE  LAW 

presence  coercion  is  implied;  (2)  not  being  present 
he  did  not  or  could  not  coerce  her;  (3)  or  unless  it 
is  a  crime  malum  in  se  (murder,  robbery,  treason, 
etc.)  ;  or  peculiarly  feminine  (as  keeping  a  bawdy 
house)  ;  or  specially  covered  by  a  statute  expressly 
referring  to  married  women. 

The  remedies  by  and  against  married  women 
are  peculiarly  connected  with  their  rights,  and  in 
any  discussion  of  married  w^omen's  statutes  the 
nature  of  the  rights  involved  must  be  kept  constant- 
ly in  mind. 

The  marriage  of  a  woman  does  not,  at  common 
law,  destroy  her  liability  on  her  ante-nuptial  con- 
tracts, or  for  her  ante-nuptial  torts,  but  simply  ren- 
ders her  husband  jointly  liable  with  her;  nor  does 
she  by  marriage  entirely  lose  her  rights  of  action, 
for,  though  her  husband  may  reduce  them  to  pos- 
session, if  not  so  reduced  during  coverture  they  sur- 
vive to  her ;  so  that  if  a  suit  is  pending  at  the  time  of 
the  marriage,  after  marriage  the  husband  has  in- 
terests to  be  affected,  and  the  opposing  party  stands 
in  a  new  position,  and  the  suit  abates.  But  at 
present  the  effect  of  marriage  on  pending  suits  is 
almost  entirely  controlled  by  local  statutes.  In  Ala- 
bama, for  instance,  the  suit  does  not  abate,  but  the 
marriage  is  suggested,  and  the  husband  is  bound; 
w^hile  in  Tennessee,  the  suit  abates,  it  may  be  re- 
vived against  her  husband,  and  in  case  of  his  death 
survives  against  her.  It  is  said  a  defendant  may 
plead  in  abatement,  or  by  scire  facias  have  the  hus- 
band made  a  party;  and  if  he  omits  to  do  this,  he 
cannot  allege  coverture  after  judgment;  or,  if  the 
woman  is  a  defendant,  and  no  plea  is  entered,  the 
suit  may  proceed  to  execution  without  noticing  the 
marriage,  and  she  may  be  taken  in  execution  as  if 
sole.  Generally  speaking,  if  the  husband  is  a  neces- 
sary party  to  a  suit  brought  during  coverture,  he 

176 


MARRIED  WOMEN 

should  be  joined  upon  his  mcirriage  in  all  his  wife's 
ante-nuptial  suits. 

At  common  law,  speaking  generally,  a  married 
woman  could  neither  sue  nor  be  sued  unless  her 
husband  was  joined  with  her,  and  this  is  still  a  prima 
facie  rule,  and  the  causes  which  enable  her  to  sue 
or  render  her  liable  to  be  sued  at  all,  must  be  alleged 
and  proved. 

At  common  law,  the  suit  so  treated  is  the  suit 
of  the  husband  and  he  could,  as  defendant,  allow 
judgment  to  be  entered,  or  as  plaintiff,  release  the 
cause  of  action.  He  employed  the  counsel  and  was 
liable  for  the  costs. 

In  equity,  independently  of  statutes,  suits  of 
married  women,  except  those  for  enforcing  equity 
to  a  settlement  and  thus  concerning  her  equitable 
separate  estate,  are  governed  by  the  same  rules 
which  control  suits  at  law.  Still,  in  equity  neither 
the  husband's  bill  nor  his  answer  is  binding  upon 
her.  When  applying  for  her  settlement  whatever 
her  choses  in  action,  she  sues  by  her  next  friend, 
generally  making  her  husband  one  of  the  de- 
fendants. As  to  her  equitable  separate  estate,  she 
sues  by  her  next  friend  and  jointly  with  her  trustee, 
if  she  has  one,  making  her  husband  a  defendant  if 
his  interests  in  any  w^ay  conflict;  and  when  she  is 
sued,  her  trustee  (if  she  has  any)  should  be  sued; 
and  she  may  come  in  and  give  a  separate  answer  by 
her  next  friend. 

In  the  different  states,  statutes  have  so  differ- 
ently changed  the  procedure  in  suits  of  married 
women  that  no  general  statement  can  be  given ;  the 
statutes  of  the  state  w^here  the  particular  suit  is 
brought  must  in  each  case  be  consulted. 

At  common  law,  on  the  dissolution  of  mar- 
riage, the  joint  suit  of  husband  and  wife  in  her  right 
abated;    at  present,   generally  the  suit  will  either 

177 


WOMAN  UNDER  THE  LAW 

abate  and  have  to  be  revived  by  her  representatives, 
or  may  be  amended  and  continued  by  her  or  her 
representatives. 

If  the  joinder  of  the  husband  is  merely  formal, 
there  is  usually  no  abatement.  Thus,  in  case  of  her 
husband's  death  she  has  her  right  of  action  on  her 
chose  in  action  as  survivor;  and  if  she  dies,  he,  at 
common  law,  prosecutes  the  suit  as  survivor  or  as 
administrator.  Divorce  has  much  the  same  effect 
as  the  husband's  death. 

Under  different  laws  and  circumstances,  a 
married  woman's  suits  have  been  properly  brought 
in  the  following  modes :  (  1 )  by  husband  and  wife 
jointly;  (2)  by  the  wife  and  her  trustee;  (3)  by 
the  wife  through  her  next  friend;  and  (4)  by  the 
wife  alone.  The  first  mode  was  the  only  one  at 
common  law^,  unless  the  wife  had  for  some  reason 
the  capacity  of  a  feme  sole;  the  second  and  third 
were  the  usual  modes  of  procedure  in  equity  re- 
specting equitable  separate  property;  and  the  fourth 
was  the  mode  in  w^hich  the  wife,  who  on  account  of 
her  husband's  civil  death,  had  the  capacities  of 
a  feme  sole,  brought  suit  at  common  law  and  is 
the  usual  way  in  which  she  sues  under  modern 
statutes.  Although  many  statutes  giving  married 
women  modes  of  suits  unknown  at  common  law 
have  been  construed  to  supersede  the  common  law 
modes,  and  to  make  a  suit  brought  as  at  common 
law  improper,  a  statute  which  enables  married 
women  to  sue  by  next  friend  does  not  necessarily 
deprive  her  of  the  privilege  of  proceeding  jointly 
with  him  as  at  common  law;  and  in  other  cases  the 
common  law  mode  has  been  held  not  wholly  super- 
seded. 

Under  different  laws  and  circumstances  suits 
have  been  brought  properly  against  married  women, 
in  the  following  modes :     (  1 )  jointly  w^ith  husband ;, 

178 


\ 


MARRIED  WOMEN 

(2)  jointly  with  trustees;  and  (3)  alone.  The  first 
was  the  invariable  mode  at  common  law  not  only 
because  the  husband  w^as  jointly  liable  with  the  wife 
on  all  her  contracts  and  torts,  but  because  he  had 
present  and  substantial  interests  in  all  her  property, 
which  might  be  affected  by  the  suit.  The  second 
w^as  the  mode  when  the  wife  had  a  trustee  of  equit- 
able separate  property.  The  third  was  the  mode 
in  which  a  wife  with  the  capacities  of  a  feme  sole 
was  sued,  and  is  the  usual  mode  under  the  statutes. 
The  peculiar  defence  of  married  women  is,  of 
course,  the  defence  of  coverture.  The  fact  of  cover- 
ture in  some  cases  affects  the  defence  of  limitations ; 
and  the  fact  that  the  husband  is  joined  sometimes 
raises  the  question  as  to  how^  far  a  defence  of  one 
will  be  available  for  the  other.  The  wife's  bank- 
ruptcy, for  example,  discharges  both  her  husband 
and  herself  from  liability  for  her  debts,  while  his 
bankruptcy  discharges  him  alone.  As  to  other 
defences,  there  are  no  special  points  relating  to 
married  women,  except  so  far  as  the  management 
of  the  suit  is  concerned. 

If  the  record  in  the  case  of  a  judgment  against 
a  married  woman  discloses  the  fact  of  her  coverture, 
a  cause  of  action  on  which  a  married  woman  might 
be  liable,  the  joinder  of  all  proper  parties,  and  that 
the  married  woman  has  been  duly  summoned,  and 
if  the  subject  matter  of  the  suit  be  one  within  the 
jurisdiction  of  the  court,  the  married  woman  is 
bound  thereby  as  if  unmarried.  If  the  record  dis- 
closes the  fact  of  coverture,  but  not  grounds  on 
which  a  married  woman  might  be  liable,  the  judg- 
ment is  void,  for  the  court  has  no  jurisdiction  to  en- 
ter it ;  if  though  it  appears  that  the  grounds  of  action 
were  such  as  might  render  a  married  woman  liable, 
but  that  the  suit  was  not  properly  brought,  the 
defect  is  cured,  and  the  judgment  is  valid.     If  the 

179 


WOMAN  UNDER  THE  LAW 

record  does  not  disclose  the  fact  of  coverture,  the 
married  woman  may  in  any  proceeding  show  that 
owing  to  her  coverture  she  was  not  Hable  at  all, 
but  she  cannot  show^  that  she  was  liable  but  was 
improperly  sued.  Some  cases  hold  more  broadly 
that  in  any  case  where  the  court  had  jurisdiction  of 
the  parties  (by  summons  or  appearance),  and  of 
the  subject  matter,  the  judgment  is  valid,  and  the 
wife  estopped;  but  the  better  rule  is  that  a  married 
woman  is  estopped  only  when  the  judgment  is  valid, 
and  that  a  judgment  on  a  contract  is  itself  but  a  con- 
tract and  not  binding  on  a  party  not  bound  by  the 
contract.  A  void  judgment  may  be  enjoined  in 
equity.  For  example,  a  personal  judgment  against 
a  married  woman  alone  is  valid,  if  the  cause  of  ac- 
tion v/ere  a  contract  made  by  her  as  a  feme  sole 
trader;  but  a  personal  judgment  against  a  wife  for 
the  balance  of  a  mortgage  debt  is  not  valid  where 
she  was  not  personally  bound  on  the  mortgage 
notes;  so  a  judgment  on  a  void  note  w^as  held  ab- 
solutely void  by  the  same  court  which  recognized 
the  binding  force  of  a  judgment  against  a  married 
woman  by  default  on  a  tort  committed  by  her. 

On  any  valid  general  judgment  against  hus- 
band and  wife  jointly,  execution  could  formerly  be 
issued  against  the  bodies  of  them  both,  and  now 
can  be  issued  against  the  property  of  them  both 
except  in  such  cases  as  those  w^here  the  property 
of  the  wife  is  exempt  by  the  terms  of  some  statute 
or  deed,  or  w^here  a  statute  expressly  provides  that 
a  husband  shall  be  only  a  formal  party.  If  the  judg- 
ment is  against  the  wife  alone,  her  property  alone 
is  liable;  if  the  wife  is  not  a  party  to  the  suit,  her 
property  is  not  liable  at  all.  The  judgment  may  be 
by  its  terms  a  lien  only  on  her  statutory  separate 
estate. 

At  common  law,  it  must  be  remembered,  a 

180 


MARRIED  WOMEN 

husband  had  the  absolute  right  to  reduce  his  wife's 
choses  in  action  to  possession,  and  was  Uable  with 
her  on  all  her  contracts  and  for  all  her  torts;  and 
as  her  legal  existence  w^as  merged  in  his,  he  w^as  the 
active  party  in  all  suits  in  w^hich  they  were  both 
joined.     She  could  not  appoint  an  attorney,  or  re- 
lease errors,  or  confess  judgment;   she  could  only 
appear  in  person  and  plead  her  coverture,  if  that 
would  do  her  any  good.      So  that  in  all  cases  in 
which   the   common   law^  procedure   has   not  been 
superseded,    the    husband    employs    counsel    and 
pleads  and  manages  the  case  for  himself  and  his 
wife.     If  they  are  the  plaintiffs,  he  can  settle  or  dis- 
miss the  suit,  and  is  alone  liable  for  the  costs;   if 
they  are  defendants,  he  may  allow  the  suit  to  go 
by  default,  or  suffer  judgment  to  be  entered  in  favor 
of  the  plaintiff;  and  so  long  as  there  is  no  collusion 
between  him  and  the  plaintiff,  the    w^ife    will    be 
bound  by  his  acts.     But  his  right  to  act  for  his  wife 
in  this  way  has  been  questioned  in  cases  where  she 
was  insane.     At  common  law,  if  a  husband  neg- 
lected to  prosecute  his  wife's  rights  of  action,   or 
released  them,  his  loss  w^as  even  greater  than  hers, 
for  he  had  the  immediate  right  to  the  enjoyment  of 
them,  and  if  he  allow^ed  judgment  to  be  obtained  on 
her  ante-nuptial  contract  or  tort,   or  on  her  post- 
nuptial tort  (the  only  causes  of  action  on  which  a 
judgment   binding   on   her   property   could  be   ob- 
tained), the  judgment  w^as  against  himself  as  well; 
so  that  the  control  of  the  suit  could  be  safely  trusted 
to  his  charge.     But  as  his  said  control  of  his  wife's 
suit  grow^s  out  of  his  substantial  ownership  of  her 
rights  of  action,  and  his  equal  liability  on  her  obliga- 
tions, it  does  not  exist  where  his  said  rights  and 
obligations  do  not  exist,  and  disappears  as  they  are 
removed.     He  could  never,  for  example,  through 
any  suit  of  his,  estop  her  from  claiming  property  in 

181 


WOMAN  UNDER  THE  LAW 

which  he  had  no  rights  by  making  her  a  co-com- 
plainant, nor  could  he,  by  allowing  a  judgment  to  be 
entered  against  them  on  a  cause  of  action  on  which 
she  was  not  liable,  deprive  her  of  her  inheritance. 
He  cannot  control  her  suits  respecting  her  equitable 
or  statutory  separate  estate,  unless  by  her  consent 
and  as  her  agent  in  fact;  nor  in  such  cases  can  he 
admit  service  for  her.  When  he  is  a  mere  nominal 
party,  he  is  entitled  to  all  her  defences. 

Courts  of  equity  have  always  recognized  the 
separate  existence  of  w^ives,  and  in  all  suits  in  which 
husband  and  wife  are  co-complainants  or  co- 
defendants,  if  they  have  separate  and  distinct  in- 
terests, the  bill  or  ansv/er  filed  by  the  husband  for 
both  is  regarded  as  prima  facie  the  bill  or  answer 
of  the  husband  alone,  and  the  wife,  if  she  requests 
it,  is  allow^ed  to  proceed  separately.  As  equitable 
separate  estate  is  out  of  the  control  of  the  husband, 
so  are  suits  relating  thereto;  and  the  wife  sues  by 
her  next  friend,  if  she  does  not  desire  to  join  her 
husband,  simply  because  the  question  of  her  liability 
for  costs  might  arise  if  she  sued  alone.  If  she  does 
sue  by  her  husband  and  allows  him  to  act  for  her, 
she  is  bound,  but  she  is  otherwise  not  bound  by  his 
declarations,  nor  are  his  statements  evidence  against 
her.  If  she  files  her  separate  answer  by  permission 
of  court,  she  is  bound  by  it ;  her  answer  filed  with- 
out permission  may  be  taken  from  the  files,  unless 
the  court  allows  it  nunc  pro  tunc.  As  a  general 
rule,  under  the  statutes  she  has  the  right  to  sue  and 
be  sued,  independently  of  her  husband;  and  just  so 
far  as  her  choses  in  action  are  made  her  statutory 
separate  property  can  she  control  the  reduction  of 
them  to  possession;  and  just  so  far  as  his  liability 
for  her  torts  and  contracts  has  been  removed  can 
she  control  suits  against  her. 

At  common  law,  a  married  woman  could  not 

182 


MARRIED  WOMEN 

appoint  an  attorney  at  law;  her  ante-nuptial  ap- 
pointment was  revoked  by  marriage ;  she  could  not 
appear  in  a  suit  by  attorney;  her  plea  or  answer 
filed  by  an  attorney  was  worthless;  a  judgment  en- 
tered against  her  on  her  warrant  of  attorney  was  a 
nullity;  her  agreement  for  alimony  made  by  her 
attorney  was  void.  In  equity  and  under  statutes, 
speaking  generally,  she  may  appoint  an  attorney  at 
law^  whenever  she  has  interests  separate  from  her 
husband,  with  respect  to  which  she  needs  legal  as- 
sistance and  advice,  or  with  respect  to  which  she 
can  act  by  agent  generally.  She  can  appoint  an  at- 
torney to  take  care  of  litigation  respecting  her  equi- 
table separate  property.  Under  statutes  expressly 
authorizing  her  to  appoint  an  attorney  or  to  contract 
generally,  she  can  of  course  appoint  an  attorney. 
And  statutes  authorizing  her  to  sue  independently 
of  her  husband,  or  to  contract  with  respect  to  her 
property,  or  securing  to  her  the  separate  enjoyment 
of  her  property,  by  implication,  give  her  the  power 
to  appoint  an  attorney  to  take  charge  of  such  suit  or 
such  property.  It  is  necessary  to  the  enjoyment  of 
rights  that  one  should  be  able  to  prosecute  and  de- 
fend them.  In  all  cases  where  she  can  appoint  an  at- 
torney, she  is  bound  by  his  acts  as  an  unmarried 
woman  w^ould  be;  by  his  laches;  his  withdrawal  of 
pleas;  his  settlement  or  dismissal  of  suit  (in  North 
Carolina)  ;  and  she  is  also  bound  to  compensate 
him.  A  statute,  however,  which  gives  a  married 
woman  the  power  to  appoint  an  attorney  does  not 
of  itself  destroy  the  husband's  substantial  rights  in 
her  choses  in  action. 

An  attorney  who  has  acted  on  behzilf  of  a  mar- 
ried woman  may  look  for  his  fees,  ( 1 )  to  her  hus- 
band, or  (2)  to  her  trustee  or  next  friend,  or  (3)  to 
her  property  or  herself. 

Since  a  wife  always  sued  and  was  sued  jointly 

183 


WOMAN  UNDER  THE  LAW 

with  her  husband  at  common  law,  and  since  he  em- 
ployed counsel  for  them  both,  the  payment  of  the 
fees  naturally  fell  upon  him.  But  w^hen  he  by  his 
conduct  made  it  necessary  for  her  to  take  proceed- 
ings against  him,  the  question  arose  whether  he  was 
not  liable  for  the  exj>enses  of  the  suit  as  necessaries. 
It  has  been  held  that  when  a  wife  sues  out  a  peace 
w^arrant  against  her  husband,  or  defends  herself 
against  a  similar  proceeding  by  him,  or  w^hen  she 
sues  for  a  separate  maintenance,  her  legal  expenses 
are  necessaries  for  which  her  husband  is  liable.  So 
her  expenses  in  bringing  or  defending  a  divorce 
suit  are  held  to  be  necessaries  in  England,  Georgia, 
low^a,  Kansas,  and  Maryland,  while  the  contrary  is 
the  rule  in  Alabama,  Connecticut,  Illinois,  Indiana, 
Kentucky,  Massachusetts,  New^  Hampshire,  Ohio, 
Tennessee  and  Vermont.  Even  w^here  such  ex- 
penses may  be  necessaries  they  are  not  necessarily 
so;  there  must  be  a  reasonable  ground  for  bringing 
the  suit,  or  some  real  defence  in  resisting  it.  Besides, 
the  courts  provide  for  counsel  fees  in  divorce  cases 
under  their  jurisdiction  to  aw^ard  alimony. 

The  trustee  of  a  married  woman's  separate 
property  may  employ  an  attorney;  and  though  him- 
self personally  bound  to  compensate  him,  he  may 
repay  himself  out  of  the  estate.  So  the  reason  for 
the  existence  of  a  next  friend  is  that  there  may  be  a 
person  responsible  for  the  expenses  of  the  suit;  and 
in  those  cases  where  a  married  w^oman  sues  by  next 
friend  he  is  liable  for  the  counsel  fees. 

At  common  law,  as  a  general  rule,  a  married 
woman  could  make  no  contract  at  all,  and  could  not 
appear  by  attorney  in  a  suit,  unless  she  were  ap- 
pointed by  her  husband ;  and  therefore  her  contract 
to  pay  counsel  fees  w^as  absolutely  void,  and  she 
could  not  even,  according  to  the  better  settled  rule, 
ratify  such  a  contract  after  the  dissolution  of  her 

184 


MARRIED  WOMEN 

marriage.     But  if  an  attorney  collected  money  be- 
longing to  her,  he  could  keep  a  reasonable  amount 
thereof  as  comp>ensation  for  his  services,  though  he 
could  not  have  recovered  anything  in  any  kind  of 
suit  against  her.     She  could,  however,  charge  her 
equitable  separate  estate  in  equity  for  fees,  just  as 
she  could  charge  it  for  any  other  debt  of  hers,  pro- 
vided she  complied  with  the  rule  prevailing  in  the 
particular  state  as  to  the  modes  in  which  the  charge 
had  to  be  made ;  for  example,  that  the  contract  was 
made  with  express  reference  to  her  said  estate  or 
was  for  its  benefit,  and  provided  that  the  property 
sought  to  be  charged  was  property  over  which  she 
had  the  power  of  disposition.      Under    a    statute 
authorizing  a  married  woman  to  contract  generally, 
there  is  no  reason  why  she  should  not  contract  for 
counsel  fees;   and  when  she  is  authorized  to  con- 
tract with  respect  to  her  property,  a  contract   for 
legal  services  respecting  the  same  would  be  valid. 
So  would  a  similar  contract  be  authorized  by  im- 
plication by  a  statute  securing  her  property  to  her 
separate  use  and  control.     So  by  implication  a  stat- 
ute authorizing  her  to  sue  and  be  sued  alone,  em- 
powers  her   to   employ   counsel   to   represent   her. 
Whether  when  she  may  employ  counsel  she  binds 
herself  personally  or  binds  only  her  property,  and 
whether  her  obligation  is  to  be  enforced  in  equity 
or  at  law^,  are  unsettled  questions,    contracts    for 
counsel  fees  being  governed  in  this  respect  by  the 
same  rules  as  other  contracts.    When  a  wife  is  liable 
for   family  expenses,   how   far  counsel   fees   are   a 
family  expense  must  depend  on  the  particular  cir- 
cumstances of  the  case. 

The  use  of  the  words  "trade"  and  "married 
woman  trader"  has  been  vague,  and  it  is  necessary, 
in  a  discussion  of  this  subject,  to  bear  in  mind  the 

185 


WOMAN  UNDER  THE  LAW 

different  elements  which  may  be  involved  in  the 
capacity  of  a  married  woman  to  trade. 

At  common  law,  generally,  a  married  v/oman 
could  make  no  contract  w^hatever;  all  her  time  and 
labor  belonged  to  her  husband,  as  did  all  the  present 
enjoyment  of  her  property;  she  had,  in  fact,  no 
legal  existence  apart  from  her  husband;  therefore 
she  could  not  trade  at  all.  If  a  female  trader  mar- 
ried, the  trade  became  her  husband's,  and  if  she 
had  been  trading  as  partner,  the  partnership  was 
dissolved  by  her  marriage. 

As  a  married  woman  could  not  contract  at  all 
by  the  common  law,  she  could  not  enter  into  any 
kind  of  engagement  or  employment  on  her  own  ac- 
count, but  all  her  time,  services,  wages  and  earn- 
ings of  every  kind  belonged  to  her  husband.  Still 
her  husband  could  agree  that  she  should  have  her 
earnings,  just  as  he  could  invest  her  with  any  prop- 
erty of  his,  and  his  agreement  would  be  enforced  in 
equity;  his  agreement,  however,  gave  her  no  per- 
sonal capacity,  but  only  the  right  to  collect  and 
keep  the  wages  and  rewards  of  her  labors.  So  by 
statute,  in  most  states,  the  w^ife's  earnings  are  se- 
cured to  her  separate  use.  These  statutes  were 
passed  to  protect  wives  from  shiftless,  improvident 
and  dissipated  husbands,  and  were  in  form  the 
earliest  of  the  statutes  relating  to  the  trade  of  mar- 
ried women. 

Although  at  common  law  all  the  interest,  prof- 
its, rents  and  increase  of  a  married  woman's  prop- 
erty vested  in  the  husband  just  as  the  property  itself 
did,  except  that  the  rents  and  profits  of  real  estate 
vested  in  him  as  personalty,  she  had  her  separate 
estate  first  in  equity  and  then  by  statute,  and  the 
increase  of  such  estate  was  also  separate  property; 
and  therefore  the  products  of  all  investments  or 
uses   of  her  separate   property  were   her   separate 

186 


MARRIED  WOMEN 

property,  though  such  products  were  partly  due  to 
her  efforts,  and  partly  to  the  labor,  skill  and  knowl- 
edge of  her  husband.  In  a  sense,  therefore,  she 
could  trade  with  her  separate  property. 

Although  when  a  married  woman's  earnings 
or  property  are  secured  to  her  separate  use,  as  above 
stated,  the  profits  of  her  business  or  trade  may  be 
her  separate  property  also, — her  personal  incapacity 
to  enter  into  trade  is  not  necessarily  removed;  for 
equity  recognizes  her  capacities  only  in  connection 
with  her  property,  and  mere  property  acts  do  not 
affect  personal  status.  So  that  to  trade  in  the  wider 
sense,  a  married  w^oman  must  either  have  the  ca- 
pacities of  a  feme  sole  or  be  expressly  authorized  to 
enter  into  business. 

Although  the  difference  betw^een  earnings  and 
increase  of  property  is  clear,  and  for  this  reason 
married  women's  separate  property  acts  do  not 
destroy  a  husband's  rights  to  his  wife's  personal  ser- 
vices, it  is  very  hard  to  draw  any  line  between  earn- 
ings and  the  profits  of  trade.  The  terms  used  in 
the  books  dealing  with  the  subject  of  married 
women  traders  are  not  sharply  defined,  but  a  few 
definitions  may  be  given. 

Earnings  means  v/hat  is  earned,  gained  or 
merited  by  labor,  services  or  performances;  wages 
or  reward;  and  the  earnings  secured  to  a  married 
woman  by  a  statute  are  not  confined  to  the  results 
of  manual  labor, — to  wages  for  washing  or  sewing, 
but  include  the  products  of  her  trade  also,  if  it  is 
carried  on  with  her  separate  property  as  capital; 
and  the  stock  in  trade  of  a  married  woman  owned 
at  the  time  of  her  marriage,  or  afterwards  bought 
with  her  earnings,  is  included  in  the  term  "earn- 
ings." 

Trade  or  business  means  an  employment  to  the 
carrying  on  of  which  the  party  devotes  a  consider- 

187 


WOMAN  UNDER  THE  LAW 

able  portion  of  her  time,  skill  and  means,  a  business 
that  is  continuing  in  its  nature  and  embraces  many 
transactions ;  engaging  in  trade  and  business  means 
not  only  trading  in  a  commercial  sense,  but 
also  being  engaged  in  other  employments  which 
require  time,  labor  and  skill.  Trading  means  engag- 
ing in  a  business  pursuit,  mechanical,  manufacturing 
or  commercial.  Thus,  though  a  single  transaction 
may  be  a  business  one,  it  does  not  make  the  party 
a  trader;  horse  dealing  may  be  a  business,  but 
a  woman  who  buys  or  sells  a  single  horse  is  not 
necessarily  in  that  business;  so  farming  may  be  a 
business,  but  employing  a  man  to  work  on  one's 
farm  does  not  make  one  a  farmer  by  trade ;  renting 
a  house  may  be  a  business  transaction  and  for  the 
purpose  of  a  business,  but  a  lease  of  rooms  is  not 
necessarily  a  contract  by  a  trader;  so  a  married 
woman's  receipt  and  disbursement  of  her  rents  and 
profits,  though  done  in  a  business  way  does  not  con- 
stitute her  a  trader;  nor  is  she  a  trader  when  she  is 
not  acting  generally  with  the  public,  but  is  simply 
taking  care  of  her  ow^n  property,  or  collecting  or 
investing  her  income.  When  she  may  trade  she  is 
not  confined  to  any  particular  trade;  she  may  not 
only  engage  in  washing,  sewing,  dressmaking,  mil- 
linery, in  keeping  a  dairy,  a  boarding  house,  a  gro- 
cery or  provision  store  and  in  other  pursuits  spe- 
cially adapted  to  her  sex,  but  she  may  be  a  farmer, 
a  miller,  an  army  sutler,  a  saloon  keeper  or  tavern 
keeper,  a  clothier,  an  iron-monger,  she  may  work 
a  mine  or  quarry,  or  may  go  into  the  lumber  busi- 
ness ;  though  if  her  trade  is  unsuited  to  her,  this  is  a 
fact  to  be  considered,  if  her  husband's  creditors  are 
trying  to  show  that  the  business  is  really  his.  So 
she  may  engage  in  the  professions — may  devote 
her  talents  to  literature,  acting,  singing  and  in  fact^ 

188 


MARRIED  WOMEN 

under  a  general  power  to  trade,  may  follow  any 
legitimate  calling. 

The  trade  of  a  married  woman  is  usually 
spoken  of  as  her  separate  trade;  the  w^ord  "sepa- 
rate" refers  rather  to  her  status  than  to  the  mode  in 
which  she  shall  trade,  and  it  does  not  mean  that 
she  shall  trade  alone,  or  prevent  her  living  with  her 
husband  while  trading,  or  allowing  him  to  join  in 
the  business.  In  Massachusetts  and  Indiana  it  has, 
how^ever,  been  held  that  she  must  keep  her  business 
separate  from  her  husband,  and  that  their  joint 
earnings  are  his  property.  The  effect  of  the  ming- 
ling of  the  wife's  with  the  husband's  property  has 
already  been  discussed. 

When  a  married  woman's  husband  is  civilly 
dead,  or  has  finally  abandoned  her,  she  has  by  the 
common  law  the  capacities  of  a  feme  sole,  and  may 
trade  as  such.  In  some  states  there  are  statutes  to 
the  same  efiFect.  How  far  her  husband's  absence 
enables  her  to  trade  in  his  place  has  already  been  dis- 
cussed. 

By  the  custom  of  London  a  married  woman 
who  carried  on  a  trade  separate  and  apart  from  her 
husband  had,  to  the  extent  of  such  trade,  all  the 
capacities  of  a  feme  sole.  Such  custom  has  never 
existed  in  the  United  States,  except  to  some  extent 
in  South  Carolina.  The  law^  recognized  this  cus- 
tom not  for  the  sake  of  wives,  but  to  encourage 
trade  and  commerce,  and  therefore  the  custom  did 
not  apply,  for  example,  to  farming.  When  trading 
under  such  a  custom  the  wife  could  be  a  bankrupt; 
but  her  suits  were  generally  conducted  jointly  with 
her  husband  for  conformity. 

In  those  States  where  a  married  w^oman  is  a 
feme  sole  as  to  her  equitable  separate  estate,  she 
may  use  the  same  in  trade,  and  the  profits  of  such 
trade  are  equitable  separate  property  likew^ise;  but 

189 


WOMAN  UNDER  THE  LAW 

in  such  trade  she  has  no  personal  capacities;  equity 
recognizes  her  separate  existence  only  with  respect 
to  her  property,  and  her  contracts  made  in  the 
course  of  her  trade  can  be  collected  only  if  they 
have  been  properly  charged  on  said  property. 

A  husband  cannot,  by  his  consent,  change  the 
personal  status  of  his  wife,  or  enable  her  to  trade 
with  the  capacities,  rights  and  liabilities  of  a  feme 
sole;  but  he  may  allow  her  to  engage  as  his  agent  in 
business  and  give  her  the  profits,  or  he  may  agree 
before  or  after  marriage  that  she  shall  keep  her  earn- 
ings or  carry  on  business  for  her  ow^n  use,  and  give 
her,  if  he  choose,  the  necessary  capital  to  start  with. 
Any  such  gift  of  earnings,  profits  or  property  to  her 
is  good  agciinst  himself,  and  his  heirs,  and  voluntary 
assigns,  but  not  as  against  his  creditors,  unless 
for  valuable  consideration.  When  a  wife  thus  trades 
under  a  settlement  from  her  husband,  she  trades  in 
equity  as  w^ith  equitable  separate  property;  the  busi- 
ness, profits,  etc.,  are  her  husband's  absolutely  at 
law.  But  if  the  business  is  really  hers  and  not  car- 
ried on  by  her  as  his  agent,  he  is  not  bound  for  the 
debts.  If  his  consent  to  her  carrying  on  business  is 
by  mere  oral  assent  and  without  consideration, 
though  he  cannot  ask  back  profits  already  made  and 
collected  by  her,  he  can  revoke  his  consent,  and 
claim  the  business  as  his  own.  In  all  cases  where 
she  carries  on  business  by  his  mere  consent,  the 
business  is  his,  and  he  is  liable  for  its  debts,  and  may 
claim  its  profits.  Whether  the  business  is  his  or 
hers  is  a  question  of  fact.  Her  agency  for  him  may 
be  proved  directly  or  indirectly.  But  if  a  w^ife  has 
engaged  in  business  without  authority  of  law^,  and 
w^ithout  her  husband's  consent,  he  cannot  be  held 
liable  for  its  debts,  nor  can  she  on  her  mere  personal 
contracts ;  so  if  all  the  credit  is  given  to  her,  her  hus- 
band is  not  liable,  w^hether  she  or  her  property  is 

190 


MARRIED  WOMEN 

liable  or  not.  Under  the  statutes  usually,  the  hus- 
band's consent  is  not  necessary  to  enable  a  wife  to 
trade ;  nor  does  his  mere  consent  involve  him  in  the 
liabilities  of  the  business. 

Married  women's  separate  property  acts  do 
not,  by  implication,  destroy  the  husband's  common 
law  right  to  his  wife's  earnings,  but  they  do  usually, 
expressly  or  by  implication,  secure  to  the  wife  the 
natural  increase  of  her  property,  and  since  such  in- 
crease belongs  to  her,  even  when  largely  due  to  her 
husband's  efforts,  there  seems  to  be  no  reason  why 
her  own  services  to  it,  though  these  belonged  to  her 
husband,  should  injuriously  affect  her  rights.  When 
a  married  woman  has  no  powers  by  statute  inde- 
pendent of  her  property,  her  dealings  with  her  stat- 
utory separate  property  in  the  way  of  trade  must 
be  subject  to  limitations  of  the  same  character  as 
those  which  control  her  trading  with  her  equitable 
separate  estate.  She  cannot,  for  example,  under 
such  a  statute,  carry  on  a  business  on  her  personal 
credit.  Her  right  to  manage  her  separate  estate  and 
her  right  to  trade  are  quite  distinct.  A  contract  for 
furniture  to  be  used  in  a  boarding  house  w^hich  is  her 
separate  property,  or  for  horses  for  her  livery  stable, 
may  not  be  valid  as  the  contracts  of  a  trader,  but 
valid  as  contracts  with  relation  to  her  separate 
property. 

A  statute  securing  to  a  married  w^oman  her 
earnings,  or  the  products  of  her  skill  and  industry, 
by  implication  enables  her  to  earn  money  and  to 
trade,  just  as  statutes  securing  to  married  women 
property  acquired  by  purchase  enable  them  to  pur- 
chase on  credit;  thus  alone  are  such  statutes  given 
a  reasonable  meaning.  A  statute  enabling  married 
women  to  trade,  unless  it  contains  restricting  provis- 
ions, enables  them  to  trade  just  as  if  they  v/ere 
sole,  to  use  any  of  the  usual  means  of  trade,  and  to 

191 


WOMAN  UNDER  THE  LAW 

engage  in  any  legitimate  calling.  A  married  woman 
may  also  trade  under  statutes  giving  her  the  capaci- 
ties of  a  feme  sole  as  to  contracts. 

Under  a  statute  enabling  married  women  to 
trade  w^ith  a  capital  of  one  thousand  dollars  or  less, 
and  creating  a  special  remedy  against  her  property 
for  her  trade  debts,  it  was  held  that  she  had  no 
powers  not  expressly  given;  that  the  naming  of 
one  mode  of  trade  was  a  negation  of  all  other 
modes;  and  that  she  could  not  trade  as  a  partner 
because  not  expressly  authorized.  In  many  states 
the  statutes  require  a  v^ife  who  wishes  to  engage  in 
trade  to  comply  ^^^ith  certain  prerequisites,  such  as 
making  a  declaration  of  record,  obtaining  a  license, 
or  decree  of  court;  and  such  requirements  must,  it 
seems,  be  complied  w^ith  to  give  her  any  new  capac- 
ity. But  a  statute  providing  that  her  husband  shall 
not  manage  her  business  has  for  its  sole  object  the 
protection  of  the  husband's  creditors,  and  when  no 
question  in  which  they  are  concerned  is  involved 
she  has  the  same  capacities  to  trade  with  as  without 
her  husband;  and  the  same  would  seem  to  apply 
to  a  statute  requiring  her  to  trade  in  her  own  name. 
When  she  can  be  declared  a  trader  only  w^hen  her 
husband  cannot  or  refuses  to  support  her,  his  mere 
temporary  sickness  will  not  suffice.  Nor  will  a 
court  of  equity  with  a  discretion  decree  her  a  trader 
when  she  would  thus  be  enabled  to  commit  a  fraud. 
When  a  statute  requires  "a  married  woman  doing 
business  on  her  separate  account"  to  file  a  certifi- 
cate, this  does  not  apply  to  married  women  making 
investments  of  their  separate  property.  A  married 
woman  need  file  no  inventory  of  her  business  unless 
this  is  required  by  statute;  nor  need  she  have  sepa- 
rate property  to  start  with. 

The  status,  rights  and  liabilities  of  a  married 
woman  trader  depend  very  largely  on  the  source  of 

192 


MARRIED  WOMEN 

her  capacity  to  trade.  Generally  speaking,  when 
she  can  trade  only  by  virtue  of  her  ownership  of 
equitable  or  statutory  separate  estate,  she  cannot 
trade  on  her  personal  credit  or  act  as  a  feme  sole, 
but  can  only  deal  with  the  property  so  that  the  prof- 
its will  enure  to  her  own  benefit,  and  can  only 
render  it  liable  for  her  debts  by  charging  it,  contract- 
ing with  reference  to  it,  etc.,  her  contracts  being 
valid  not  on  account  of  her  being  a  trader,  but  be- 
cause made  in  such  a  way  or  for  such  a  purpose  as 
the  law  allows.  So  when  she  trades  simply  as  her 
husband's  agent,  though  she  binds  him  she  does  not 
bind  herself  personally — she  may  have  the  profits 
if  he  chooses  to  let  her  keep  them,  but  he  and  the 
business  are  liable  for  the  debt  contracted  by  her  on 
its  behalf.  When,  however,  she  may  trade  per- 
sonally, by  virtue  of  her  husband's  abandonment, 
by  custom,  or  by  statute,  she  can  trade  just  as  if  she 
were  unmarried,  unless,  of  course,  the  statute  limits 
her  capacity.  In  such  case  she,  for  the  purposes 
connected  w^ith  her  business,  has  the  status  of  a 
feme  sole,  the  fullest  rights  to  the  enjoyment  of  the 
profits  of  the  business,  and  the  fullest  liabilities  for 
its  debts. 

Most  of  the  statutes  as  to  married  women 
traders  expressly  provide  that  they  shall  trade  as  if 
sole,  and  under  such  statutes  no  special  questions 
seem  to  have  arisen;  the  main  questions  are  as  to 
the  implied  powers  of  married  women  traders.  In 
one  case  it  was  held  that  the  naming  of  certain 
powers  of  trade  was  a  negation  of  all  other  powers ; 
but  the  weight  of  authority  seems  to  be  to  the  con- 
trary. 

Under  statutes  enabling  a  married  w^oman  to 
trade  and  not  limiting  her  capacities,  she  may  trade 
precisely  as  if  unmarried;  she  is  as  to  her  business, 
a  feme  sole,  and  may  do  all  things  incidental  to  trad- 

193 


WOMAN  UNDER  THE  LAW 

ing  in  general,  and  all  things  usual  and  proper  in  the 
particular  trade  in  which  she  is  engaged.  The  ob- 
ject of  these  statutes  is  not  only  to  do  justice  to 
wives,  but  also  to  encourage  trade.  Thus  she  may 
engage  in  any  legitimate  calling.  She  may  conduct 
the  business  personally  or  by  agent;  she  may  have 
her  salesmen  and  clerks;  she  may  be  a  partner, 
silent  or  active;  and  she  may,  unless  this  is  prohib- 
ited by  statute,  have  her  husband  as  her  agent,  or 
be  a  partner  with  him ;  though  this  is  in  some  states 
denied.  She  need  not,  unless  the  statute  so  pro- 
vides, have  separate  property  to  begin  with;  she 
may  start  out  on  credit,  or  use  property  given  her 
by  her  husband,  though  in  the  latter  case  his  credit- 
ors may  have  rights.  The  capital  and  stock  in  trade 
of  her  business,  as  w^ell  as  the  profits,  are  entirely 
hers;  for  instance,  the  bills  due  her  as  a  boarding 
house  keeper;  and  such  property,  though  in  the 
possession  of  her  and  her  husband,  is  in  her  pos- 
session, the  possession  relating  to  the  title.  She  may 
on  credit  purchase  goods  for  her  trade;  or  buy  land 
or  seed  for  farming  purposes;  or  rent  a  store;  or 
contract  for  her  services;  or  contract  for  working  a 
quarry — for  the  labor  and  mules;  she  may  transfer 
a  note  received  in  the  course  of  trade ;  she  may  even 
sell  out  her  business ;  and  agree  not  to  use  the  same 
name  again.  She  is  personally  liable  on  all  con- 
tracts w^hich  she  executes  in  the  conduct  of  her  busi- 
ness, even  as  endorser  of  a  note;  she  is  liable  for  the 
frauds  of  her  employes,  and  is  estopped  as  if  sole 
from  denying  their  right  to  represent  her;  she  is 
liable  for  goods  consigned  to  her.  She  may  sue  and 
be  sued  alone  and  at  law,  except,  perhaps,  as  to 
suits  with  her  husband;  and  a  general  judgment 
may  be  obtained  against  her.  The  question  whether 
a  particular  transaction  of  hers  was  in  the  course 
of  her  business  is  one  of  fact.     In  suing,  she  must 

194 


MARRIED  WOMEN 

allege  and  prove  this;  and  when  she  is  sued,  the 
plaintiff  must  allege  the  grounds  of  the  liability, 
must  allege  and  prove  affirmatively  that  she  was  en- 
gaged in  business,  and  that  the  particular  transac- 
tion was  connected  with  such  business.  She  may 
make  a  deed  for  the  benefit  of  creditors,  and  take 
the  benefit  of  the  insolvent  laws. 

The  business  creditors  of  a  married  woman 
trader  have,  under  the  statutes  generally,  the  same 
rights  as  if  she  were  sole;  they  may  sue  her  alone, 
and  obtain  a  general  judgment  against  her.  If  she 
is  a  partner,  all  the  partners  must  be  joined.  The 
husband  cannot  set  up  against  them  any  rights  that 
he  might  have  against  her  in  property  he  has 
suffered  her  to  use  in  the  business.  If  she  is  not 
trading  with  a  personal  capacity,  but  simply  by 
virtue  of  her  ownership  of  separate  property,  such 
creditors  have  generally  no  rights  in  personam 
against  her.  In  some  states  her  creditors  are  given 
special  remedies.  When  she  acts  simply  as  her 
husband's  agent,  her  creditors  are  really  his  credit- 
ors, and  the  business  is  really  his  business.  Her 
creditors  other  than  those  of  her  business  can  pro- 
ceed against  her  business  only  as  they  could  against 
her  other  separate  property. 

If  the  wife  labors  in  her  husband's  business,  or 
allows  her  property  to  be  used  therein,  the  profits 
are  nevertheless  subject  to  the  rights  of  his  credit- 
ors; but  she  is  not  personally  liable  to  the  creditors 
of  the  business  if  she  has  acted  only  as  his  agent, 
and  has  no  capacity  to  contract.  His  creditors  have 
the  right  to  go  against  her  separate  business  for  any 
sums  put  into  it  by  her  husband  in  fraud  of  their 
rights;  but  it  is  doubtful  w^hether  this  applies  to  a 
bona  fide  gift  by  him  to  her  of  his  services ;  in  some 
cases  an  apportionment  has  been  made,  and  this 
would  of  course  be  done  if  he  and  she  were  partners. 

195 


WOMAN  UNDER  THE  LAW 

His  creditors  have  no  rights  in  the  profits  of  her 
separate  business,  in  cases  where  he  has  provided 
neither  property  nor  services.  Still,  they  have  the 
right  to  treat  the  business  as  his  when  she  has  not 
complied  with  the  requirements  as  to  filing  a  dec- 
laration of  record,  etc.  When  she  cannot  be  his 
partner  she  incurs  no  liability  by  holding  herself  out 
as  such. 

When  a  man  married  a  woman  engaged  in 
trade,  he  at  common  law  took  the  business  w^ith  its 
assets  and  liabilities ;  now  he  is  liable  only  where  he 
is  still  liable  for  her  ante-nuptial  debts,  and  has  the 
right  to  the  business  only  when  such  property  is 
secured  to  her  neither  by  settlement  nor  by  statute. 
So  at  common  law,  all  the  profits  of  her  business 
during  coverture  vested  with  her  other  earnings  and 
the  other  increase  of  her  property  in  him;  but  this, 
too,  is  generally  changed.  It  is  his  business  and  he 
is  fully  liable,  and  need  not  give  her  any  part  of  the 
profits  if  she  is  trading  simply  by  his  consent  and 
has  no  other  authority ;  she  may  even  be  a  partner  in 
his  place.  When  all  the  credit  is  given  to  her  he  is 
not  liable.  Nor  is  he  liable  v/hen  she  is  trading  in- 
dependently of  him  under  the  statutes,  unless  he  is 
a  partner,  or  actually  joins  in  the  transaction. 

It  has  been  held  that  a  married  woman  trading 
in  equity  with  her  equitable  separate  property  may 
enter  into  partnership;  but  this  statement  must  be 
taken  with  limitations.  For  the  normal  contract  of 
partnership  is  a  personal  contract,  involving  a  per- 
sonal capacity,  which  a  married  woman  does  not 
have  either  in  equity  or  under  mere  separate  prop- 
erty acts.  And  therefore  it  is  settled  that  statutes 
securing  to  married  women  their  property  with 
rents,  profits,  increase,  etc.,  thereof,  although  they 
enable  her  to  trade  in  a  limited  way,  do  not  enable 
her  to  enter  into  partnership.      At  common  law, 

195 


MARRIED  WOMEN 

when  a  female  partner  married,  the  partnership  was 
dissolved,  and  now  she  cannot  be  a  partner  if  she 
has  no  capacity  to  trade  personally,  or  if  she  is  ex- 
pressly prohibited  by  the  statute  enabling  her  to 
trade,  or  so  far  as  she  is  partially  prohibited,  as  she 
is  in  some  states.  But  as  she  has,  under  the  statutes 
giving  her  the  capacity  to  trade  generally,  the  per- 
sonal capacity  to  trade  as  if  sole,  and  the  power  to 
pursue  all  the  usual  methods  of  trade,  she  may,  un- 
der such  acts,  trade  in  partnership;  she  may  even  be 
held  responsible  as  a  secret  partner.  Still  in  a  few 
cases,  and  on  different  grounds,  this  has  been  de- 
nied. So,  as  she  is  a  feme  sole  in  her  trade,  and  may 
employ  an  agent,  general  or  special,  and  may  em- 
ploy her  husband  as  such,  there  seems  to  be  no 
reason  why  she  should  not  be  able  to  form  a  part- 
nership with  her  husband;  and  many  cases  hold, 
while  others  assume,  that  she  may.  But  this  is  also 
strenuously  denied,  on  the  ground  that  even  where 
a  married  woman  may  contract,  she  cannot,  without 
express  authority,  contract  with  her  husband,  and 
that  the  particular  statute  enables  her  to  trade  on  her 
separate  account.  To  this  it  is  replied,  that  if  she 
may  employ  her  husband  as  her  agent,  as  all  admit 
she  can,  it  is  not  consistent  to  say  that  she  cannot 
contract  with  him;  and  that  the  word  "separate"  in 
the  statute  does  not  refer  to  the  mode  in  which  a 
married  woman  shall  trade,  but  to  her  status  as  in- 
dependent of  her  husband's  marital  control  and 
marriage  rights.  In  such  cases,  as  she  cannot  be  a 
partner  or  be  liable  on  a  partnership  note  signed  by 
one  of  the  other  partners,  she  can,  nevertheless,  be 
liable  for  her  individual  acts;  nor  does  she,  in  such 
cases,  lose  her  property  put  into  a  firm  business. 
Though  she  may  not  join  a  firm  of  which  her  hus- 
band is  a  member,  she  may,  after  his  retirement, 
go  in,  and  on  a  new  consideration  become  liable  for 

197 


WOMAN  UNDER  THE  LAW 

the  pre-existing  partnership  debts.  So,  although 
she  cannot  be  a  partner,  she  may  jointly  lease  and 
share  the  profits  of  joint  property,  and  be  bound  by 
her  husband's  acts  as  her  agent  with  respect  thereto. 
If  the  husband  has  furnished  part  of  her  capital,  her 
business  may  pro  tanto  be  liable  for  his  debts,  and 
the  courts  have  sometimes,  without  speaking  of 
husband  and  wife  as  partners,  ordered  an  apportion- 
ment of  the  profits  of  a  business  jointly  carried  on 
by  them. 

Very  nearly  the  same  questions  arise  in  con- 
sidering a  married  woman's  capacity  to  be  an  incor- 
porator as  those  which  are  involved  in  her  right  to 
be  a  partner.  Incorporators  enter  into  a  mutual  and 
personal  contract,  which  is  concluded  by  the  act  of 
incorporation;  and  therefore,  without  personal 
capacity  to  contract,  a  married  woman  could 
not  be  an  incorporator.  But  as  business  is  very 
commonly  carried  on  by  corporations,  a  mar- 
ried w^oman  w^ith  capacity  to  trade  would,  it 
seems,  have  capacity  to  be  an  incorporator.  The 
fact  that  the  corporation  laws  provide  that  "any 
person"  may  be  an  incorporator  w^ould  not 
affect  a  married  woman  under  incapacity,  by 
virtue  of  a  rule  already  discussed.  But  a  married 
woman  may  be  a  stockholder,  holding  her  stock  as 
any  other  chose  in  action ;  and  it  has  been  held  that 
when  she  can  hold  stock  as  if  sole,  she  is  liable,  as 
any  other  stockholder,  for  example,  for  assess- 
ments. 

A  married  woman's  subscription  to  stock  is  an 
executory  agreement,  and,  as  such,  void  at  common 
law ;  but  a  note  given  for  stock  has  been  held  bene- 
ficial to  her  separate  estate,  and  therefore  a  charge 
thereupon,  and  by  statute,  in  some  states,  she  may 
be  a  subscriber. 

Whether  married  women  may  act  in  represen- 

198 


MARRIED  WOMEN 

tative  capacities,  whether  they  may  be  agents,  trus- 
tees, administrators,  executors,  guardians,  etc.,  and 
how  far  their  acts  in  such  capacities  have  the  same 
effect  as  the  acts  of  persons  sui  juris  in  similar 
capacities,  are  questions  which  are  nowhere  fully 
discussed;  and  much  confusion  is  likely  to  result  in 
such  a  discussion,  unless  the  different  points  of  view 
from  which  the  subject  may  be  approached  be  borne 
in  mind.  For  example,  a  married  woman  may  be 
an  agent,  in  the  sense  that  she  may,  as  if  she  were 
sole,  bind  a  party  who  has  authorized  her  to  act  for 
him,  but  not  necessarily  at  the  same  time,  in  the 
sense  that  she  may  recover  compensation  for  her 
services,  or  be  liable  for  money  received  to  her  prin- 
cipal's use,  or  be  personally  liable  to  third  parties 
with  w^hom  she  has  dealt  in  her  own  name.  So  she 
may  be  a  trustee,  in  the  sense  that  her  husband  can- 
not claim  substantial  rights  in  property  of  which 
she  holds  only  the  bare  legal  title,  and  she  may 
dispose  of  such  property  in  accordance  with  the 
powers  vested  in  her  by  the  trust ;  and  yet  she  would 
not  be  liable  personally  for  work  done  at  her  request, 
as  a  person  sui  juris  would  be,  or  be  able  to  bind 
herself  personally  to  execute  the  power  of  her  trust. 
And  so  she  may  be  an  administratrix,  in  the  sense 
that  once  appointed  she  may  act  as  such,  and 
yet  her  appointment  may  depend  on  the  consent 
of  her  husband.  So  as  to  guardianships.  It  thus 
plainly  appears  that  a  married  woman  who  may 
act  in  a  representative  capacity  does  not,  while 
so  acting,  have  the  same  rights  and  liabilities  as  a 
feme  sole  and  that  the  following  questions  may 
arise,  namely:  (1  )  How  far  do  her  conjugal  obli- 
gations conflict  with  her  right  to  act  in  a  represen- 
tative capacity — how  far  has  her  husband  the  right 
to  control  her  in  this  respect,  (2)  How  far  do  her 
personal     disabilities — her     coverture,     affect     her 

199 


WOMAN  UNDER  THE  LAW 

capacity  to  so  act,  (3)  How  far  do  her  acts  in  a 
representative  capacity  affect  her  personally,  (4) 
Or  her  husband,  (5)  Or  her  principal  or  estate, 
(6)  Or  the  third  parties  with  whom  she  deals. 

With  regard  to  the  questions  already  stated, 
certain  general  rules  may  be  formulated,  to  wit. 

(  1  )  As  to  Husband's  Consent. — At  common 
law,  a  husband  not  only  took  his  wife  with  all  her 
accrued  obligations,  but  he  was  also  jointly  liable 
w^ith  her  for  her  torts,  whether  committed  with  his 
consent  or  not,  and  w^as  therefore  liable  for  all  her 
breaches  of  trust,  devastavits,  etc. ;  so  that  for  his 
own  protection  he  had  the  right  to  say  whether  she 
should  act  in  a  representative  capacity,  and  sub- 
ject him  to  such  additional  risks.  But  his  consent 
was  necessary  only  so  far  as  his  liabilities  w^ere  con- 
cerned,— he  could  not,  for  example,  object  to  her 
executing  a  power  to  convey  property,  and  for  this 
reason,  it  would  seem  that  his  right  to  object  at  all 
is  removed  by  statutes  destroying  his  marital  liabil- 
ity for  the  acts  of  his  wife. 

(2)  As  to  Wife's  Coverture. — The  fact  that 
a  wife  has  no  personal  capacities,  but  is  under  the 
disabilities  of  coverture,  does  not  prevent  her  acting 
in  a  representative  capacity;  she  may  be  an  agent, 
administratrix  or  executrix,  trustee,  or  guardian;  it 
only  affects  her  personal  rights  and  obligations 
while  acting  in  such  capacities.  A  married  woman 
is  not  in  this  respect  like  an  idiot;  she  has  as  much 
discretion  after  as  before  marriage. 

(3)  As  to  Personal  Rights  and  Obligations 
of  Wife. — The  fact  that  a  married  w^oman  may  act 
in  a  representative  capacity,  and  is  so  acting,  does 
not  enlarge  her  personal  capacities,  or  remove,  as 
far  as  she  is  herself  concerned,  her  marriage  disa- 
bilities, or  affect  her  personal  status.  Her  contracts, 
though  made  in  her  own  name,  do  not  bind  her  per- 

200 


MARRIED  WOMEN 

sonally,  unless  she  has  the  capacity  to  contract  per- 
sonally; so  she  may  be  unable  to  stipulate  for  any 
compensation.  For  her  torts  she  is,  of  course,  per- 
sonally liable,  for  a  married  woman  is  not,  even  at 
common  law,  under  disability  to  commit  wrongs. 

(4)  As  to  Her  Husband's  Rights  and  Obliga- 
tions.— A  husband  has  no  property  or  estate  in 
funds  held  by  a  married  woman  in  a  representative 
capacity.  He  generally  sues  and  is  sued  with  her 
for  conformity,  and  on  contracts  on  which  if  sole 
she  could  have  declared  in  her  ow^n  name,  he  could 
at  common  law  sue  alone.  For  all  his  devastavits 
and  acts  in  the  nature  of  tort  he  is  jointly  liable  w^ith 
her,  in  accordance  with  the  rules  already  discussed 
relating  to  a  husband's  liability  for  his  wife's  torts. 
He  is  liable  for  her  contracts  only  if  she  acted  as  his 
agent.  He  must  account  for  any  money  which 
passes  into  his  possession. 

(5)  As  to  the  Estate  or  Principal. — The  es- 
tate or  person  whom  the  wife  represents  is  bound, 
and  receives  the  benefit  of  her  acts  just  as  if  she 
were  sole;  her  conveyance  in  accordance  with  her 
powers,  or  her  receipt  for  funds,  is  binding  as  if  by 
him. 

(6)  As  to  Third  Parties. — The  rights  and 
obligations  of  the  persons  with  whom  she  deals  as 
representative  are  the  same,  as  far  as  the  person  or 
estate  which  she  represents  is  concerned,  as  if  she 
were  sole;  but  as  far  as  she  herself  is  concerned, 
they  are  simply  such  as  may  exist  against  any  mar- 
ried woman. 


201 


CHAPTER  VII. 
SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

The  separate  property  of  a  married  woman 
is  that  of  which  she  has  the  exclusive  control,  inde- 
pendent of  her  husband,  and  of  which  she  may- 
dispose  as  she  pleases. 

The  separate  property  of  married  women  may 
be  classified  into  the  equitable  and  the  statutory; 
the  former  being  that  recognized  by  the  courts  of 
equity  irrespective  of  statutes ;  the  latter  that  recog- 
nized and  created  by  those  statutes  which  limit  the 
common  law  rights  of  the  husband  in  his  wife's 
property,  and  which  enlarge  the  rights  of  the  wife. 
The  two  classes  of  property  may  exist  together. 

The  Alabama  Code  establishes  an  entirely 
new  system  of  laws  relating  to  the  property  of  mar- 
ried v/omen,  and  abrogates  the  distinction  betw^een 
the  equitable  and  statutory  separate  estates,  except 
in  cases  where  the  property  is  conveyed  to  an  active 
trustee,  and,  therefore,  with  that  exception,  equit- 
able separate  estates  are  now  statutory  in  Alabama. 

The  whole  doctrine  of  the  separate  estate  of  a 
married  woman  is  a  creature  of  equity,  and  sets  at 
naught  all  or  most  of  the  principles  of  the  common 
law  touching  the  marital  relation,  and  also  touching 
property  generally. 

Thus,  a  v^ife  may  be  enabled  to  dispose  of  her 
separate  estate  as  freely,  and  with  less  solemnity 
than  a  feme  sole,  to  charge  it  merely  by  implication, 
as  a  feme  sole  cannot  do,  and  may  also  be  restrained 
from  conveying  or  charging  it  at  all,  a  restraint  ad- 

202 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

verse  to  one  of  the  most  settled  doctrines  of  the 
general  law  of  property.  In  respect  to  the  power  of 
alienation  of  a  wife's  separate  estate,  a  distinction 
is  made  between  real  and  personal  property.  As  to 
personal  property,  the  wife  may  dispose  of  it  ab- 
solutely at  her  pleasure,  by  deed  or  will,  as  if  she 
were  a  feme  sole;  unless  the  instrument  which  cre- 
ates the  estate  and  vests  it  in  her  shall  impose 
restrictions,  and  then  these  restrictions  will  consti- 
tute the  law  of  the  case.  In  respect  to  real  property 
her  power  of  disposition  is  more  circumscribed.  If 
she  is  not  in  terms  allowed,  by  the  instrument  which 
clothes  her  with  the  separate  estate,  to  alien  it  in 
some  designated  way,  she  can  do  so  only  by  will 
duly  executed,  or  by  deed  executed  with  the  for- 
malities prescribed  for  married  women.  And  it 
seems  that,  though  permitted  to  alien  otherwise 
than  in  pursuance  of  the  statute,  she  is  not  thereby 
precluded  from  adopting  the  statutory  mode.  The 
rents  and  profits  of  her  separate  real  estate  consti- 
tute personalty,  and  may  be  disposed  of  according- 
ly, unless  invested  in  lands.  Where  the  wife  has 
the  power  of  disposition,  she  may  bestow  her  sepa- 
rate property  as  well  on  her  husband  as  on  a  stran- 
ger, and  not  by  giving  it  to  a  third  person  to  give  to 
him,  but  by  conveyance  directly  to  himself  (unless 
where  she  conveys  under  the  statute).  But  a  court 
of  equity  w^ill  not  give  sanction  or  effect  to  a  con- 
veyance to  the  husband  without  first  subjecting  the 
w^ife  to  a  privy  examination,  and  adopting  such 
other  precaution  as  shall  seem  needful  to  ascertain 
her  freedom  of  action. 

Although  the  subject  of  "Pin  Money"  has  been 
briefly  commented  upon  in  the  chapter  on  Hus- 
band and  Wife,  it  may  be  said  by  way  of  amplifica- 
tion, that  "Pin  Money"  is  a  provision  made  by  the 
husband,  either  in  pursuance  of  a  marriage  contract 

203 


WOMAN  UNDER  THE  LAW 

or  by  a  gift,  for  the  purpose  of  supplying  the  wife 
with  articles  of  dress,  and  with  pocket  money,  in 
order  to  prevent  the  annoyance  of  a  constant  re- 
course to  him  with  petty  demands  for  personal  ex- 
penditures. It  may  consist  of  gifts  of  money  made 
from  time  to  time,  or  of  a  specific  periodical  allow- 
ance, or  of  the  savings  and  profits  accruing  from  her 
efficient  domestic  management.  It  must  not  be  to 
the  prejudice  of  the  husband's  creditors;  and  the 
wife  acquires  an  unimpeachable  right  of  property 
therein  subject  to  tw^o  qualifications.  First,  it  is 
bestowed  for  the  specific  purpose  of  decking  her 
person  for  the  credit  of  the  common  household,  and 
a  husband  has  a  certain  interest  in  it  as  well  as  the 
wife,  and  may  demand,  or  constrain,  the  expendi- 
ture to  be  made  accordingly;  second,  even  though 
stipulated  for  by  a  marriage  settlement,  she  cannot 
call  upon  her  husband  to  pay  any  arrears  if  he  has 
meanwhile  provided  for  her  current  w^ants;  nor  in 
any  event  beyond  the  arrears  of  a  single  year.  Nor, 
it  seems,  can  her  personal  representative  demand 
any  arrears  at  all,  for  the  money  is  designed  to  dress 
and  adorn  the  wife  during  the  year  and  not  for  the 
accumulation  of  the  fund. 

An  equitable  separate  estate  may  be  created  in 
a  married  woman  by  a  written  instrument,  or  even 
orally  in  the  case  of  personalty;  it  may  be  by  deed 
or  by  will,  in  trust  or  direct,  ante-nuptial  or  post- 
nuptial. No  trustee  is  necessary;  equity  never 
suffers  a  trust  to  fail  for  want  of  a  trustee.  It  has 
even  been  held  unnecessary  to  make  the  settlement 
in  the  form  of  a  trust.  The  husband  will  be  deemed 
to  hold  as  trustee  for  his  wife  and  to  be  accountable 
to  her  for  the  rents  and  profits  as  any  other  trustee 
would  be. 

Technical  w^ords  are  not  required  to  create  an 
equitable  separate  estate.     It  is  necessary  only  that 

204 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

the  terms  of  the  settlement  show  that  the  settlor 
intended  the  husband  should  have  no  marital  rights 
in  the  property  in  question.  If  no  such  intent  ap- 
pears, there  is  created  but  an  ordinary  trust  for  a 
married  woman.  The  release  of  her  dower  is  a 
good  consideration  for  a  conveyance  to  her  separate 
use. 

The  following  phrases  by  themselves  have} 
been  held  to  have  the  effect,  in  a  settlement  on  a 
married  woman,  of  excluding  the  husband's  rights : 
"For  her  sole  and  separate  use."  "For  her  own  sole 
use  and  benefit."  "For  her  use  and  benefit."  "For 
her  sole  use,"  "As  her  separate  estate."  "For  her 
full  and  sole  use  and  benefit."  "Only  as  and  for 
her  own  separate  estate,  free  from  the  control  of 
her  husband."  "For  her  sole  use  and  benefit."  "To 
her  exclusive  use,  benefit  and  behoof."  "To  her 
sole  use,  benefit  and  behoof."  "For  her  exclu- 
sively." "For  her  exclusive  use  and  benefit."  "For 
her  own  use  and  at  her  own  disposal."  "For  her 
sole  and  absolute  use."  "To  be  hers  and  hers  only." 
"For  her  ow^n  use  and  benefit  independent  of  any 
other  person."  "For  her  without  any  hindrance  or 
molestation  whatever."  "For  her  use  independent 
of  any  husband."  "Not  subject  to  the  control  of  her 
husband."  "Not  to  be  sold,  bartered  or  traded  by 
the  husband."  "For  her  livelihood."  "For  her  sole 
and  exclusive  use." 

The  following  phrases  by  themselves  have 
been  held  not  to  have  the  effect  in  a  settlement  on 
a  married  woman,  of  excluding  the  husband's 
rights:  "To  A's  wife."  "In  trust  for  her."  "For 
her  proper  use."  "To  her  and  her  children."  "For 
her  own  use."  "And  enjoy  as  she  sees  fit."  "For 
her  use  and  benefit."  "For  the  joint  use  of  herself 
and  husband."  "For  her  own  use,  benefit  and  be- 
hoof," and  "In  her  own  right." 

205 


WOMAN  UNDER  THE  LAW 

Where  the  settlement  proceeds  from  the  hus- 
band it  is  generally  to  be  construed  as  operating  to 
her  separate  use,  though  no  such  words  are  used  as 
would  be  necessary  to  create  a  separate  estate  in  a 
conveyance  by  a  stranger;  otherwise  the  convey- 
ance will  be  without  effect.  The  doctrine  that  a  gift 
to  the  wife  is  a  gift  to  the  husband  cannot  apply 
where  the  husband  himself  makes  a  gift  or  grant 
to  the  wife,  which  surely  cannot  be  taken  as  a  gift  or 
grant  to  himself.  And  where  the  husband  himself 
makes  a  gift  or  grant  to  the  wife,  the  intention  to 
relinquish  his  ow^n  rights  in  favor  of  the  wife,  and 
thus  to  give  her  a  separate  property  or  interest,  is 
necessarily  and  most  clearly  and  unequivocally 
manifested  and  declared.  A  promissory  note  of  a 
third  person,  given  by  the  husband  to  the  wife  dur- 
ing coverture,  becomes  a  part  of  her  equitable,  and 
not  her  statutory  estate,  and  any  conveyance  of 
property  by  him  to  her  directly  by  coverture  except 
by  compensation  or  substitution  for  other  property 
which  belongs  to  her  statutory  estate,  creates  in  her 
an  equitable  estate.  Where  a  married  woman  claims 
her  earnings  as  her  equitable  separate  estate,  by 
way  of  gift  from  her  husband,  it  w^ill  not  be  sus- 
tained, unless  it  is  made  clear  that  the  husband  in- 
tended to  divest  himself  of  all  interest  in  such  earn- 
ings, and  to  set  them  apart  to  the  v/ife. 

The  intention  is  to  be  gathered  from  the  whole 
instrument,  and  in  ascertaining  it,  a  liberal  construc- 
tion is  to  be  adopted;  and  the  court  is  not  confined 
to  the  deed  itself,  but  may  resort  to  the  marriage 
contract,  if  there  is  one.  For  instance,  in  a  settle- 
ment of  property  by  a  husband  on  his  wife,  free 
from  all  his  liabilities,  an  exception  of  such  incum- 
brance as  the  two  together  shall  request  the  trustee 
to  make  is  not  repugnant  to  the  grant,  but  is  merely 
a  qualification  thereof. 

206 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

A  recital  in  a  deed  that  it  is  the  separate  prop- 
erty of  the  wife,  removes  any  presumption  that  it 
is  community  property,  and  vests  the  title  according 
to  the  "^^^rms  of  the  deed. 

A  verbal  ante-nuptial  contract  by  a  womaji 
that  she  shall  own  and  control  as  separate  estate, 
the  property  she  then  has,  w^ill  be  valid,  and  though 
her  husband  contributes  his  services  as  carpenter 
and  builder  in  erecting  a  house  upon  land  purchased 
by  her,  it  cannot  be  subjected  to  his  debts. 

If,  in  a  sealed  instrument,  the  husband  cic- 
knowledges  the  receipt  of  money  as  his  wife's  share 
of  her  parent's  estate  and  binds  himself  to  return 
it  to  her  when  she  so  desires,  it  shows  a  sufficient 
intent  to  create  a  separate  estate  in  the  wife,  and 
the  marital  rights  of  the  husband  do  not  attach. 
Where  she  is  dissatisfied  w^ith  his  investment  of  her 
money  in  land,  and  he  promises  to  pay  her  the 
value  of  the  property,  her  executors  may  claim  the 
value  of  the  same  against  his  estate  on  his  failure  to 
do  so. 

Where  a  married  woman  mingles  with  the 
profits  of  a  boarding  house  run  by  her,  a  monthly 
allowance  from  her  husband,  and  it  is  not  apparent 
whether  the  furniture  of  the  house  is  purchased 
with  her  money  or  that  furnished  by  the  husband,  it 
will  be  deemed  to  be  her  separate  property.  A  court 
of  equity  can  settle  on  her  her  share  in  the  per- 
sonalty of  her  father's  estate,  in  the  hands  of  an 
administrator,  and  the  creditors  of  her  insolvent 
husband  cannot  have  the  same  applied  to  the  pay- 
ment of  their  claims. 

Where  the  plaintiflF's  husband  drove  a  number 
of  cows  at  night  from  her  premises  and  the  next  day 
they  were  found  in  defendant's  possession,  he  claim- 
ing to  have  purchased  them  from  her  husband  and 
refusing  to  return  them,  and  the  evidence  showed 

207 


WOMAN  UNDER  THE  LAW 

that  the  plaintiff  had  purchased  the  cows  with  her 
own  funds,  that  feed  bought  for  them  on  credit  was 
charged  to  her,  that  she  had  supported  the  family, 
and  that  the  ow^ner  of  the  premises  she  occupied 
had  given  her  permission  to  live  there,  it  was  suffi- 
cient to  sustain  the  finding  of  a  referee,  in  an  action 
of  trover  for  the  cows,  that  they  were  hers. 

If  a  husband  allows  his  wife,  during  his  life- 
time, to  hold  a  note  and  use  the  proceeds  as  her  own 
property,  it  must  be  considered  to  have  been  her 
separate  estate.  And  if  he  recognizes  a  trust,  made 
for  her  benefit  by  an  investment  of  her  share  in  an 
estate  during  his  absence,  it  will  be  considered  her 
sepan-ate  estate. 

But  where,  by  an  ante-nuptial  parol  contract, 
he  agrees,  in  consideration  of  the  marriage,  that  she 
shall  hold  all  her  property  then  owned  or  thereafter 
acquired,  as  her  separate  estate,  but  vesting  in  her 
no  power  of  disposition,  she  takes  from  him  the  use 
and  control  thereof  during  life,  but  at  her  death 
bank  stock  owned  by  her  goes  to  him. 

A  wife  cannot  claim  as  her  separate  estate 
property  of  her  husband  on  which  she  has  erected 
a  dwelling,  under  an  agreement  w^ith  him  for  its  con- 
veyance to  her,  so  as  to  exclude  the  claims  of  her 
husband's  creditors;  nor  is  alimony  awarded  to  a 
wife  by  the  decree  of  divorce  her  separate  estate. 
Nor  lands,  in  the  absence  of  recitals  in  the  deed  suffi- 
cient to  create  a  separate  estate,  conveyed  to  the 
wife  by  the  husband  with  the  intent  to  shield  it  from 
his  creditors. 

An  ante-nuptial  contract  entered  into  in 
France,  excluding  property  there  owned  by  the 
wife  from  the  community  property,  does  not,  in  the 
absence  of  an  agreement  that  the  real  estate  of  the 
wife  shall  be  her  sole  estate  free  from  the  control  of 

208 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

the  husband,  secure  to  the  wife  as  separate  estate, 
real  estate  owned  by  her  at  that  time  in  Missouri. 

It  has  been  held  in  Pennsylvania  that  where  a 
woman,  at  the  date  of  a  will  devising  property  to 
her,  is  neither  married  nor  contemplating  marriage, 
she  will  not  take  a  separate  estate  therein,  although 
she  was  married  at  the  death  of  the  testator,  and  the 
devise  vests  in  her  absolutely. 

And  also  that  a  wife  cannot  recover  against 
the  execution  creditors  of  her  husband,  where  the 
property  seized  was  in  possession  of  the  husband, 
unless  she  shows  that  the  property  was  paid  for  out 
of  her  separate  estate. 

The  presumption  that  property  bought  by  a 
w^ife  with  the  money  of  her  husband  was  intended 
as  a  settlement  for  her,  may  be  rebutted  by  proof 
that  it  was  understood  between  them  that  the  prop- 
erty should  be  his,  or  that  she  took  the  title  thereof 
without  his  knowledge  or  consent. 

Where  a  wife  owned  lands  lying  in  another 
state,  never  during  her  lifetime  reduced  into  posses- 
sion by  the  husband,  the  court  of  Vermont  treated 
moneys  received  for  rent  of  the  lands  as  assets  of 
her  estate,  without  requiring  proof  that  she  might 
have  held  the  income  thereof  as  her  own,  by  the 
laws  of  the  State  wherein  the  land  lay. 

In  a  few^  states  it  is  held  that  a  married  vv^oman 
has  no  power  over  her  separate  estate  but  such  as  is 
given  by  the  instrument  creating  it;  it  was  held  in 
Rhode  Island  that  a  married  wroman  had  no  power 
to  charge  her  separate  estate  unless  it  w^as  given  her 
in  the  instrument  creating  the  trust.  But  in  a  later 
case  the  court  said  that  without  words  in  the  instru- 
ment restraining  her  it  is  not  to  be  doubted  that  the 
equitable  estate  of  a  married  woman,  in  real  prop- 
erty settled  to  her  sole  and  separate  use,  is  as  alien- 
able by  her — she  and  her  husband  joining  in  a  deed, 

209 


WOMAN  UNDER  THE  LAW 

executed  in  solemn  form  under  the  statute — as  her 
legal  estate  in  real  property;  but  the  English  rule 
and  the  one  adopted  in  the  majority  of  the  states  is, 
that,  (a)  as  to  personal  property  or  the  produce  of 
lands,  she  may  dispose  of  it  freely,  by  will  or  other- 
wise, precisely  as  if  she  were  feme  sole,  save  only 
when  it  is  otherwise  provided  by  the  instrument 
whence  she  derives  the  estate;  but,  (b)  as  to  real 
property,  a  more  rigorous  doctrine  prevails.  If  not 
expressly  allowed  to  dispose  of  it  in  some  designated 
way,  she  can  do  so  only  by  will,  executed  as  wills  of 
land  are  required  to  be  executed,  or  by  deed  of  con- 
veyance, executed  with  the  formalities  prescribed 
by  law  for  married  women. 

The  Kentucky  statute,  allowing  a  woman  to 
dispose  by  will  of  any  estate  secured  to  her  separate 
use  by  deed  or  device,  or  in  the  exercise  of  a  written 
power,  does  not  allow^  her  to  dispose  of  land,  unless 
the  deed  itself  creates  in  her  a  separate  estate.  And 
where  the  husband,  after  her  death,  executes  a  writ- 
ing relinquishing  all  his  interests,  the  same  as 
though  it  had  been  deeded  to  her  separate  use,  and 
the  will  had  been  made  in  pursuance  of  a  written 
power,  and  files  it  at  the  probate,  it  does  not  validate 
the  will  where  the  rights  of  heirs  are  already  vested 
under  the  statutes  of  descent.  Nor  does  a  power  to 
use,  sell,  exchange,  reinvest  or  otherwise  dispose  of, 
as  she  may  think  proper.  Under  this  statute  her 
separate  property  may  be  conveyed  by  order  of 
court.  Her  signature  to  the  application  for  the  sale, 
and  to  the  deed,  is  sufficient  evidence  of  her  assent. 
Or  her  separate  property  may  be  conveyed  under  a 
pow^er  of  attorney  to  her  husband;  and  she  may 
dispose  of  it  to  secure  the  payment  of  his  debts. 
She  will  be  bound  by  covenants  contained  in  her 
deeds ;  but  a  lease  by  the  husband,  w^ithout  her  con- 
sent, is  void,  and  in  an  action  by  her  to  recover  pos- 
session no  notice  to  quit  is  necessary. 

210 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

When  the  instrument  creating  the  trust  pro- 
vides that  it  may  be  disposed  of  by  one  mode,  other 
modes  are  generally  excluded.  A  number  of  cases 
support  the  opposite  doctrine,  that  a  power  of  dis- 
position specifically  pointed  out  does  not  preclude 
the  adoption  of  any  other  mode  of  disposition  unless 
there  are  negative  words  restraining  the  exercise 
of  the  pow^er  to  the  very  mode  pointed.  On  an  ex- 
amination of  these  cases  it  w^ill  be  found  that  an  ab- 
solute estate  w^as  granted  the  w^ife,  the  instrument 
specifying  that  it  should  be  conveyed  by  deed,  in 
which  the  husband  or  trustee  joins,  or  by  will,  and 
the  question  arose  on  her  power  to  charge  it  w^ith 
her  debts. 

As  a  corollary  to  the  above  proposition,  it  is 
the  settled  doctrine  in  England  that  a  married 
w^oman  may  charge  her  separate  estate  in  equity, 
even  by  implication,  with  her  debts,  contracts  and 
engagements.  By  entering  into  such  engagements 
she  must  have  meant  to  effect  something  and  as  she 
cannot  have  expected  to  have  charged  her  person, 
she  could  have  had  no  other  design  than  to  subject 
to  the  fulfillment  of  her  engagements  so  much  of 
her  separate  estate  as  is  subject  to  her  absolute  dis- 
posal as  if  she  w^ere  a  feme  sole.  And  thi^  is  the 
general  rule  in  the  United  States,  though  in  some 
states  the  contract  must  be  for  the  benefit  of  the 
wife  or  her  separate  estate.  Following  is  the  doc- 
trine as  to  a  married  woman's  charging  her  equitable 
separate  estate  as  it  exists  in  each  of  the  states  in  the 
Union : 

ALABAMA. — There  is,  in  this  State,  an  es- 
sential difference  in  the  manner  of  charging  the 
statutory  separate  estate  of  a  married  woman  and 
her  equitable  separate  estate,  or  separate  estate  by 
contract.  The  former  is  charged  by  the  statute  w^ith 
the  price  of  certain  articles,  the  character  of  which 

211 


WOMAN  UNDER  THE  LAW 

is  specified,  and  her  agency  in  purchasing  them  is 
immaterial ;  while  the  latter  can  only  be  charged  by 
the  act  and  agreement  of  the  wife,  and,  in  the  ab- 
sence of  restraining  words  in  the  instrument  creat- 
ing the  estate,  it  may  be  charged  to  the  same  extent 
as  if  she  were  a  feme  sole. 

By  giving  a  promissory  note  for  the  purchase 
price  of  land  conveyed  as  statutory  estate,  and  a 
mortgage  to  secure  the  same,  a  married  woman 
thereby  charged  her  equitable  separate  estate. 

She  may  become  a  member  of  a  partnership 
and  her  interest  will  be  subject  to  a  judgment  against 
it  in  a  common  name.  Where  a  conveyance  was 
to  her  use,  with  power  to  sell,  or  mortgage  the  same, 
provided  she  join  with  the  trustee  in  any  sale  or  con- 
veyance of  the  property,  and  by  such  joint  action 
manifest  her  consent  in  writing  to  the  disposal  of 
the  same,  she  v/as  allowed  to  mortgage  it  to  secure 
her  husband's  debts  without  the  trustee  joining.  A 
charge  against  the  equitable  separate  estate  can  only 
be  enforced  in  equity;  and  the  creditors  have  prior- 
ity in  the  order  in  which  their  bills  are  filed. 

ARKANSAS. — In  order  that  her  separate 
property  may  be  bound,  it  is  not  necessary  that  she 
should  execute  an  instrument  expressly  referring 
to  it  or  purporting  to  exercise  a  power  over  it.  It  is 
sufficient  that  she  professes  to  act  as  a  feme  sole; 
for  the  court  of  chancery  in  giving  her  the  capacity 
to  hold  separate  property  gives  also  the  capacity, 
incident  to  property  in  general,  of  incurring  debts 
to  be  paid  out  of  it,  and  enforces  payment  of  such 
debts  when  contracted,  not  as  personal  liabilities, 
but  by  laying  hold  of  the  separate  property  as  the 
only  means  by  which  they  can  be  satisfied. 

But  the  contract  must  be  for  the  benefit  of  her- 
self, or  her  separate  estate,  or  it  cannot  be  enforced 
against  it. 

212 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

A  married  woman  may  charge  her  separate  es- 
tate by  the  employment  of  counsel  to  prosecute  a 
suit  for  divorce,  and  if  she  die  before  the  termina- 
tion of  the  suit,  the  counsel  will  be  entitled  to  be 
paid  out  of  her  estate  for  the  service  rendered  during 
her  life.  A  judgment  against  a  married  woman 
upon  a  claim  for  which  she  is  not  legally  liable — 
for  instance,  as  maker  of  a  note  for  the  accomoda- 
tion of  her  husband — is  not  void,  but  may  be  en- 
forced against  her  separate  property. 

CALIFORNIA. — A  married  woman  may  con- 
tract for  services  to  be  rendered  for  the  protection 
and  preservation  of  her  separate  estate,  w^hich  is  per- 
sonal property,  and  for  services  thus  rendered  on  the 
faith  of  her  separate  estate,  a  court  of  equity  will 
enforce  a  lien;  but  she  cannot  create  a  lien  on  her 
separate  estate  except  by  contract  in  w^riting  signed 
and  acknowledged  by  her. 

But  courts  of  equity  are  careful  in  guarding 
against  imposition,  and  in  seeing  that  dealings  with 
her  affecting  her  separate  estate  are  free  from  fraud 
and  reasonable  in  their  terms,  and  that  no  unfair 
advantage  has  been  taken  of  her. 

COLORADO. — There  must  be  an  express 
promise  binding  the  separate  estate,  unless  the  con- 
tract is  for  her  benefit,  or  for  the  benefit  of  her 
separate  estate.  Her  contracts  were  formerly  valid 
only  against  her  separate  property  in  equity. 

CONNECTICUT. — The  presumption  is  that  a 
contract  entered  into  by  a  married  woman  having  a 
separate  estate,  for  its  benefit  or  for  its  exclusive 
benefit,  was  contracted  upon  the  credit  of  her  estate. 
A  husband  cannot  rebut  the  presumption  of  law 
that  a  building  erected  by  him,  on  her  separate  prop- 
erty, is  intended  for  her  benefit,  and  cannot  recover 
the  value  of  such  building  either  from  her  or  from 
her  estate. 

213 


WOMAN  UNDER  THE  LAW 

DISTRICT  OF  COLUMBIA.— A  purchase  of 
furniture  by  a  married  woman,  for  a  house  forming 
her  separate  estate,  is  a  contract  relating  to  her 
separate  estate  and  will  be  enforced.  But  otherwise 
if  the  house  was  not  her  separate  estate.  Nor  is  the 
purchase  of  a  horse  and  carriage  to  be  used  in  riding 
back  and  forth  from  her  home  in  the  country  to  look 
after  property  in  the  city,  for  the  benefit  of  her 
separate  estate  or  a  contract  relating  to  it.  If  she 
allows  her  husband  to  buy  supplies  for  the  family 
upon  the  credit  of  her  separate  estate,  she  will  be 
liable  therefor. 

FLORIDA. — Unless  the  indebtedness  is  in- 
curred on  account  of  the  beneficial  nature  of  the 
consideration,  as  inuring  to  the  benefit  of  her  prop- 
erty or  estate,  the  only  manner  in  which  a  married 
woman  living  with  her  husband,  can  create  a  charge 
upon  her  separate  property,  is  by  some  deed,  mort- 
gage, or  other  instrument  of  writing,  duly  executed 
and  acknowledged  according  to  the  statute.  But 
real  estate  of  the  wife  will  be  charged  in  equity  with 
the  value  of  improvements  which  she  causes  to  be 
built  thereon. 

GEORGIA. — While  the  w^ife  may  contract, 
she  cannot  bind  her  separate  estate  by  any  contract 
of  suretyship,  nor  by  any  assumption  of  the  debts 
of  her  husband;  and  any  sale  of  her  separate  estate 
made  to  a  creditor  of  her  husband  in  extinguishment 
of  his  debt  shall  be  absolutely  void ;  and  this  applies 
not  only  to  the  separate  estate  of  the  wife  created  by 
deed,  but  to  any  property  held  by  her  as  separate 
estate.  This  does  not  affect  the  power  of  a  widow^ 
to  contract  w^ith  reference  to  such  debts  after  her 
husband's  death.  In  other  respects  the  rule  is  the 
same  as  in  England. 

ILLINOIS. — The  debt  must  be  contracted  for 
her  own  benefit,  on  the  credit  of  her  separate  prop- 

214 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

erty,  or  in  reference  to  it,  or  there  must  be  some 
appropriate  instrument  executed  by  her  with  a  view 
to  make  the  debt  a  specific  charge.  A  contract  by  a 
married  woman  compromising  a  bona  fide  claim 
against  an  estate  in  which  she  has  a  right  to  a  dis- 
tributive share,  is  one  in  respect  to  her  separate 
estate,  and  binding  on  her,  notwithstanding  her 
coverture. 

INDIANA. — In  this  state  the  rule  is  the  same 
as  in  Illinois.  The  intent  to  charge  must  be  clear 
and  is  not  to  be  presumed,  and  the  contract  must  be 
one  from  which  benefit  results  to  the  property. 

IOWA. — Iowa  adopts  the  same  rule  as  Indiana 
and  Illinois. 

KANSAS. — Kansas  follows  the  English  rule, 
and  a  married  woman  may  bind  herself  by  her  con- 
tract, to  the  extent  of  her  separate  property.  A  per- 
sonal judgment  may  be  rendered  against  her  which 
will  reach  any  or  all  of  her  separate  property  not 
exempt  from  execution  under  the  exemption  laws. 
When  a  married  woman  executes  a  promissory 
note,  she,  of  course,  means  something.  She  either 
means  to  charge  her  separate  estate,  or  else  she 
means  to  cheat  and  defraud  the  person  to  whom  she 
gives  the  note.  Is  it  not  more  charitable  to  suppose 
she  means  the  former?  But  suppose  she  means  the 
latter,  will  courts  of  equity  hear  her  plead  her  own 
guilt  and  fraud?  If  the  contract  of  a  married  woman 
does  not  bind  her  separate  estate,  then,  of  course, 
it  is  a  nullity ;  for  it  is  well  settled  that  it  cannot  bind 
her  personally.  But  to  give  her  contract  such  a 
construction  violates  at  least  two  well  settled  prin- 
ciples of  law:  First,  it  presumes  her  guilty  of  fraud 
before  the  fraud  is  shown.  Second,  it  adopts  a  con- 
struction which  will  defeat  the  contract,  instead  of 
adopting   the   construction  w^hich  will   prevent   its 

215 


WOMAN  UNDER  THE  LAW 

violation  and  give  effect  to  the  obligation  of  each 
and  all  parties. 

KENTUCKY.  —  A  married  woman  may 
charge  her  separate  estate  whenever  she  thinks 
proper  to  do  so,  but  her  intention  must  be  manifest 
or  otherwise  it  will  not  be  held  liable.  The  execu- 
tion of  a  note  or  endorsement  of  a  bill  of  exchange 
has  been  regarded  as  manifesting  an  intention  by 
a  feme  covert  to  charge  her  separate  estate.  It  must 
be  the  debt  of  the  wife  and  the  credit  must  be  given 
to  her,  or  she  must  receive  the  benefit  of  it.  A  mar- 
ried w^oman,  with  power  to  sue  and  be  sued,  to  con- 
tract and  manage,  sell,  convey,  and  devise  her  prop- 
erty cannot  make  herself  liable  upon  a  contract  of 
suretyship  for  the  husband  or  for  others ;  but  where 
a  device  in  trust,  to  pay  her  the  income,  contained  a 
provision  that  it  was  not  to  be  liable  for  her  debts, 
it  was  held  that  it  might  be  subjected  nevertheless. 
Her  separate  property  is  not  liable,  after  marriage, 
for  necessaries,  unless  the  contract  be  in  writing  and 
signed  by  herself  and  husband;  but  a  joint  note  by 
herself  and  husband  given  in  payment  for  neces- 
saries, is  sufficient  evidence  in  writing. 

MARYLAND. — In  Maryland  it  must  be 
affirmatively  shown  that  the  contract  was  made  by 
the  married  woman  with  direct  reference  to  her 
separate  estate,  and  that  it  was  her  intention  to 
charge  the  same.  But  where  a  husband  and  wife 
bound  themselves  to  execute  a  mortgage  of  the 
separate  estate  of  the  wife,  by  a  contract  founded 
upon  a  proper  consideration,  it  was  enforced  by  a 
court  of  equity  and  the  estate  held  liable  for  the  debt 
intended  to  be  secured.  Where  a  husband  and  wife 
own  adjoining  tracts  of  land,  and  the  husband,  in- 
tending to  build  a  house  for  himself,  selected  a  site 
on  the  tract  belonging  to  the  w^ife  because  it  was  a 
more  commanding  and  in  every  way  a  more  desir- 

216 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

able  location,  and  made  a  contract  for  the  erection 
of  a  house,  and,  when  it  was  finished,  paid  in  full 
the  contract  price,  notice  to  the  husband  by  a  fur- 
nisher of  materials  that  he  intended  to  claim  a 
mechanic's  lien  was  held  insufficient,  as  the  notice 
should  have  been  given  to  the  wife,  the  husband 
not  being  her  agent  in  contracting  for  the  erection 
of  the  house. 

MASSACHUSETTS.— The  contract  must  be 
made  with  reference  to  the  separate  estate.  A  mar- 
ried woman  cannot  bind  her  separate  estate  by  a 
contract  of  suretyship,  unless  in  consideration  of  the 
benefit  to  herself  or  to  the  estate.  And  the  fact  that 
a  note  given  for  the  indebtedness  of  her  husband, 
and  signed  by  both,  is  secured  by  a  mortgage  on  her 
real  estate,  does  not  render  her  liable  on  the  note. 
Her  husband  may  act  as  her  agent,  and  evidence 
that  he  has  the  general  management  of  her  prem- 
ises, and  employed  a  man  to  perform  labor  upon 
a  house  upon  the  land  w^ith  the  wife's  knowledge, 
and  that  she  gave  directions  as  to  parts  of  the  work, 
will  justify  a  finding  that  he  was  her  authorized 
agent.  While  evidence  that  work  done  on  the  sepa- 
rate property  of  a  married  woman  w^as  done  w^ith 
her  knowledge,  may  warrant  a  jury  in  finding  that 
she  agreed  to  pay  for  it,  it  raises  no  such  presump- 
tion of  law^,  and  the  judge  has  no  right  to  direct  a 
verdict  for  the  plaintiff  in  an  action  against  her. 

MICHIGAN. — To  sustain  a  contract  made  by 
a  married  woman  it  must  appear  to  have  been  made 
with  the  intent  to  bind  her  separate  property,  as  well 
as  upon  a  consideration  that  would  sustain  it  for 
that  purpose.  She  may  be  held  personally  liable 
on  her  endorsement  of  paper  due  to  herself  upon  an 
affirmative  showing  that  it  was  directly  for  the  ad- 
vantage of  her  separate  estate.  Where  a  married 
woman  living  w^ith  an  irresponsible  husband  prom- 

217 


WOMAN  UNDER  THE  LAW 

ises  that  she  will  pay  for  goods  and  medical  services 
to  be  furnished  to  her  and  her  family,  and  they  are 
charged  directly  to  her  upon  the  creditor's  books,  it 
appearing  that  he  would  not  furnish  them  upon  the 
husband's  credit  she  is  liable  therefor.  The  holder 
of  a  bond,  executed  by  a  husband  and  wife  for 
money  borrowed  for  the  w^ife's  sole  benefit  and  use 
in  erecting  a  house  upon  land  of  which  she  was  the 
owner  in  fee,  is  entitled  to  have  the  claim  allow^ed 
out  of  her  separate  estate.  But  w^here  the  husband 
and  wife  gave  a  promissory  note  for  money  loaned 
for  the  sole  benefit  of  the  husband  and  there  was  no 
representation  that  it  was  for  the  benefit  of  the 
wife's  separate  estate,  the  payee  cannot  recover,  as 
the  fact  that  the  note  was  signed  by  both  was  suffi- 
cient notice  that  it  was  not  for  the  benefit  of  her 
separate  estate.  The  fact  that  the  husband  acted  as 
agent  for  the  wife  in  procuring  the  loan  makes  no 
difference.  A  married  woman  is  not  liable  upon  her 
promissory  note,  given  to  secure  the  debt  of  her 
husband.  It  is  void  as  soon  as  made,  and  will  not 
be  protected  in  the  hands  of  a  bona  fide  holder 
whether  negotiable  or  not.  But  a  mortgage  given  to 
secure  credit  for  him  will  be  enforced  if  no  fraud  is 
practised  on  the  v^fe. 

MINNESOTA. — A  married  woman  cannot 
bind  herself  personally  by  any  contract  she  may 
make.  But  her  separate  estate  w^ill,  in  equity,  be 
held  liable  for  all  the  debts,  charges,  incumbrances 
and  other  engagements  which  she  does,  expressly 
or  by  implication,  charge  thereon  in  any  manner  not 
inconsistent  with  the  instrument  by  which  she 
acquires  title  to  the  property.  Where  a  building 
w^as  erected  upon  land  of  w^hich  a  married  woman 
was  part  owner,  under  a  contract  entered  into  by 
her  husband  and  others,  and  it  did  not  appear  that 
she  w^as  a  party  to  the  contract  in  any  way,  or  that 

218 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

her  husband  or  any  other  person  acted  as  her  agent ; 
that  she  had  had  any  connection  whatever  with  the 
erection  of  the  building,  or  that  it  was  erected  for 
her  on  her  account,  or  with  her  knowledge ;  or  that 
she  ever  agreed  to  pay  anything,  for  or  towards  the 
expense  of  its  erection,  she  could  not  be  held  liable 
for  the  expense  incurred  thereon. 

MISSISSIPPI.  —  In  Mississippi  a  married 
woman  may  deal  with  her  separate  estate  as  if  she 
were  feme  sole,  unless  her  power  is  restrained  by  the 
instrument  creating  it.  These  estates  have  grown 
up  w^ith  equity  jurisprudence  and  are  not  recognized 
by  courts  of  law^.  The  married  woman's  law  of 
1857  does  not  apply  to  them,  and  the  class  of  con- 
tracts w^hich  that  statute  enables  her  to  make  is  not 
the  criterion  of  her  capacity  to  bind  her  equitable 
estate.  She  may  render  it  liable  for  the  payments 
of  her  debts  by  her  separate  acts.  She  may  mort- 
gage it  to  secure  the  payment  of  her  husband's 
debts,  but  the  incumbrance  reaches  only  to  the  rents 
and  profits  of  the  realty  and  does  not  affect  the  fee. 
The  plea  of  coverture  is  no  bar  to  an  action  for  the 
price  of  family  supplies  and  necessaries  sold  to  her, 
for  the  use  and  benefit  of  the  separate  estate.  The 
plaintiff  in  order  to  charge  the  separate  estate,  must 
set  out  in  its  pleadings,  under  the  Revised  Code  of 
Mississippi,  the  special  circumstances  which  gave 
validity  to  the  contract.  A  foreign  judgment  against 
a  married  woman  cannot  be  enforced  unless  some 
fund  consisting  of  her  separate  property  is  pointed 
out  from  which  it  may  be  satisfied.  In  only  one  in- 
stance can  the  husband  impose  a  charge  upon  the 
wife's  estate  without  her  consent,  and  that  is  where 
her  lands  are  devoted  to  agriculture.  He  may  bur- 
den the  estate  in  such  case  with  a  charge  for  such 
things  as  are  necessary  to  the  production  of  the 
crop,  and  for  its  management,  without  consulting 

219 


WOMAN  UNDER  THE  LAW 

her,  and  nothing  can  exempt  the  estate  from  this 
liability  except  a  waiver  of  it  by  the  creditor.  It  is 
liable  notwithstanding  the  husband  misapplies  the 
supplies  and  she  receives  no  benefit  therefrom ;  and 
such  liability  may  be  enforced  in  a  court  of  chan- 
cery. But  where  the  supplies  were  sold  to  the  hus- 
band without  knowing  that  the  plantation  was  his 
wife's  she  was  not  estopped,  after  his  death,  from 
denying  that  she  ever  received  them  or  that  they 
were  used  for  her  benefit.  The  contract  of  a  mar- 
ried woman  to  purchase  land  on  a  credit  imposes  no 
obligation  on  her  personally  or  on  her  separate  es- 
tate. Her  separate  property  may  be  subjected  to  the 
payment  of  a  judgment,  even  though  acquired  after 
its  rendition.  A  judgment  against  husband  and 
wife  on  a  note  for  borrowed  money  is  erroneous 
where  the  note  is  not  shown  to  have  been  applied  to 
her  use  or  to  her  separate  estate. 

MISSOURI. — It  is  well  settled  in  Missouri  that 
a  married  w^oman  is  to  be  regarded  as  a  feme  sole 
as  to  her  separate  property,  and  competent  to  con- 
tract debts  which  will  bind  it,  whether  it  be  named 
or  referred  to,  or  not,  and  by  giving  a  note  or  mak- 
ing a  written  contract  she  raises  a  presumption  that 
she  intends  to  bind  such  estate,  and  a  contrary  in- 
tention, to  be  shown,  must  appear  from  the  instru- 
ment itself  and  cannot  be  shown  by  parol.  The  es- 
tate may  be  bound  by  a  note  executed  in  blank.  She 
may  subject  her  separate  estate  to  a  mechanics'  lien. 
The  fact  that  a  husband,  as  trustee,  contracted  debts 
for  the  improvement  of  her  property,  does  not  of 
itself  create  a  lien  on  the  same,  in  the  absence  of  a 
deed  or  other  appropriate  instrument  of  writing 
executed  by  him.  Where  her  husband  acts  as  her 
authorized  agent,  she  will  be  bound,  but  not  per- 
sonally. 

Where  a  married  woman  gives  her  notes  for 

220 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

the  purchase  money  of  real  estate,  and  secures  them 
by  a  mortgage  upon  the  property  purchased,  no  per- 
sonal judgment  can  be  given  on  the  notes,  but  the 
lien  created  by  the  mortgage  will  be  enforced  by  an 
action  analogous  to  a  proceeding  in  equity  to  sub- 
ject the  property  to  the  debt.  Her  property  cannot 
be  attached.  A  proceeding  in  equity  is  the  only 
method  by  which  the  separate  estate  of  a  married 
w^oman  can  be  charged  with  the  payment  of  her 
debts,  and  the  jurisdiction  of  the  court  is  in  no  way 
dependent  upon  antecedent  legal  proceedings  of  any 
kind.  If  she  has  but  a  life  estate  and  only  the  usu- 
fruct of  it  inures  to  her  benefit,  she  can  create  no 
equitable  charge  upon  the  property. 

Demands  against  the  separate  estate  stand 
upon  the  same  footing  at  her  death  as  other  un- 
preferred  demands,  but  the  general  creditors  should 
resort  to  any  other  estate  that  she  may  have  first. 
In  order  to  bind  the  separate  estate  the  contract  need 
not  be  based  upon  a  consideration  moving  directly 
to  her;  and  though  the  contract  may  be  made  a 
charge  upon  the  separate  estate,  it  does  not  neces- 
sarily become  a  lien  thereon.  There  is  this  differ- 
ence between  the  written  and  parol  promise  of  a 
married  woman:  where  goods  designed  for  family 
consumption  are  sold  to  a  wife  on  her  parol  promise 
of  payment,  she  will  be  presumed  to  purchase  on  the 
credit  of  her  husband,  while  purchases  made  on  her 
written  agreement  will  be  presumed  to  have  been 
made  on  her  separate  credit.  The  endorsement  of  a 
promissory  note  has  been  held  to  be  an  appointment 
in  writing;  and  though  the  terms  of  a  deed  of  settle- 
ment only  allow  the  wife  to  convey  the  separate 
estate  by  joining  her  husband,  she  may  still  subject 
it  to  the  payment  of  her  debts.  Her  separate  estate 
will  be  charged  in  equity  with  damages  for  her 
breach  of  contract  to  purchase  real  estate. 

221 


WOMAN  UNDER  THE  LAW 

NEW  HAMPSHIRE.— This  state  adopts  the 
English  rule,  and  by  statute  the  wife  is  made  liable 
at  law  personally,  as  well  as  in  respect  of  her  estate, 
for  debts  contracted  by  her  in  respect  to  it.  But  she 
can  make  no  contract  for  money  or  property  in  an- 
ticipation of  the  purchase  of  such  separate  estate. 

NEW  JERSEY.— The  separate  estate  of  a 
married  woman  will  be  held  liable  in  equity  for  all 
debts  which  she,  either  expressly  or  by  implication, 
charges  thereon.  But  if  she,  during  coverture, 
contracts  debts  generally  without  indicating  any  in- 
tention to  charge  her  separate  estate  for  the  pay- 
ment of  them,  it  will  not  be  liable.  If  she  assigns 
a  bond  belonging  to  her  separate  estate,  for  a  valu- 
able consideration,  and  guarantees  the  payment,  she 
will  be  held  liable  on  the  guaranty.  She  cannot  bind 
herself  personally,  but  the  charge  is  one  upon  her 
separate  estate.  Such  debts  are  not  a  lien  upon  the 
separate  estate  until  made  so  by  a  decree  of  the  court 
of  equity.  A  married  woman  cannot  charge  her 
separate  estate  by  a  contract  of  suretyship,  unless 
in  consideration  of  a  benefit  to  herself  or  to  the 
estate.  But  the  release  of  lands  in  which  she  has  a 
dower  right  from  an  incumbrance  is  such  a  benefit. 
An  obligation  enforceable  in  equity  will  support  an 
express  promise  to  pay.  Where  a  feme  covert  has 
no  separate  estate,  her  contract  does  not  create  an 
obligation  which  is  enforceable  in  equity;  and, 
therefore,  is  not  such  a  consideration  as  will  support 
an  express  promise  to  pay  after  the  death  of  her  hus- 
band. The  jurisdiction  in  the  court  of  equity  over 
the  separate  estate  of  a  married  woman,  rests  not 
merely  on  the  ground  that  it  is  an  equitable  estate, 
but  on  the  ground  that  it  is  her  separate  estate, 
which  is  equitably  subject  to  contracts  and  engage- 
ments entered  into  by  her  which  are  not  legally 

222 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

binding  on  her   personally,   and  which   cannot  be 
enforced  at  law. 

NEW  YORK. — It  must  clearly  appear  from  a 
written  instrument  that  it  was  a  married  woman's 
intention  to  charge  her  separate  estate,  or  the  con- 
sideration of  the  contract  must  be  for  the  direct 
benefit  of  the  estate  itself;  and  if  charged  by  a  writ- 
ten instrument,  whatever  separate  estate  she  may 
possess  at  the  time  of  the  trial  and  judgment,  even 
though  acquired  after  the  instrument  was  signed, 
will  be  bound.  Where  the  wife  knew  that  the  plain- 
tiff was  at  work  on  a  house  that  she  was  building  on 
her  separate  premises,  and  the  kind  of  work  that  he 
was  doing,  the  law  will  imply  a  promise  on  her  part 
to  pay  for  his  services,  although  he  w^as  employed 
by  the  husband  without  any  express  agreement 
whether  he  should  be  paid  by  the  husband  or  by  the 
w^ife.  And  where  a  married  woman  informed  the 
physician  attending  her  that  she  owned  a  team  of 
horses  and  carriages,  and  w^as  worth  enough  to  pay 
him  her  account,  and  it  was  on  the  strength  of  these 
representations  that  he  attended  her,  it  w^as  held 
sufficient  to  show  the  existence  of  a  separate  estate, 
and  to  sustain  a  verdict  for  the  plaintiff.  Where  a 
husband  gave,  in  payment  of  an  antecedent  debt, 
his  note,  endorsed  by  his  wife,  to  one  w^ho  does  not, 
on  the  faith  thereof,  release  any  security  or  legal 
rights,  or  extend  the  time  of  the  payment  of  the 
debt,  the  wife  cannot  be  held  liable.  And  when  a 
married  w^oman  sent  an  order  to  the  payee  of  a  note, 
signed  by  her  as  principal  with  her  husband  as  sure- 
ty, requesting  that  the  money  be  sent  by  the  holder 
of  the  order,  and  it  w^as  thereupon  paid  said  holder, 
the  presumption  that  the  money  wras  received  by 
her  and  applied  to  the  benefit  of  her  estate  might  be 
overcome  by  proof  that  the  money  was  actually  paid 
to  the  husband  by  the  party  receiving  it. 

223 


WOMAN  UNDER  THE  LAW 

It  does  not  impair  the  negotiability  of  a  note 
made  by  a  married  woman  for  it  to  contain  a  clause 
making  it  a  charge  upon  her  separate  estate. 

The  burden  of  proof  is  always  on  the  plaintiff 
to  show  that  the  contract  was  for  the  benefit  of  the 
wife's  separate  estate,  and  if  made  by  her  husband 
as  her  agent,  that  it  was  within  his  power  as  agent. 

By  an  act  of  the  legislature,  a  married  woman 
is  liable  for  her  attorney's  fees  without  reference  to 
the  question  of  actual  benefit  to  her  separate  estate. 

NORTH  CAROLINA.— Where  an  instru- 
ment executed  by  a  married  woman  with  the  writ- 
ten consent  of  her  husband,  does  not  specifically 
charge  her  separate  estate,  it  is  necessary  to  show 
such  a  consideration  inuring  to  her  benefit,  or  the 
benefit  of  her  separate  estate,  as  w^ill  necessarily 
imply  such  a  charge.  But  if  the  money  borrowed 
be  used  to  improve  the  separate  estate,  a  charge  will 
be  implied. 

A  married  woman's  power  to  charge  her  sepa- 
rate estate  is  limited  in  North  Carolina  to  the  man- 
ner and  mode  prescribed  by  the  instrument  creating 
it;  and  under  the  former  practice  it  could  only  be 
subjected  by  a  bill  in  equity — a  proceeding  in  rem 
not  in  personam. 

A  deed  of  trust,  executed  by  a  husband  and 
wife  upon  her  separate  estate,  to  secure  the  pur- 
chase-money thereof  and  money  borrowed  to  defray 
expenses  of  farming  operations  on  other  lands,  is 
valid. 

OHIO. — Where  a  married  woman,  having  a 
separate  estate,  executes  a  promissory  note  as  surety 
for  the  principal  maker,  a  presumption  arises  that 
she  thereby  intends  to  charge  her  separate  estate 
with  its  payment;  but  a  contract,  to  charge  the 
separate  estate,  need  not  be  in  writing,  though  it 

224 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

must  be  valid  in  law,  or  just  and  equitable  between 
the  parties. 

OREGON. — Oregon  also  adopts  the  English 
rule. 

PENNSYLVANIA.— A  married  woman's 
power  over  property  settled  to  her  separate  use  can- 
not exceed  the  limits  prescribed  in  the  deed  of  settle- 
ment, and  she  has  only  those  powers  to  transfer  and 
charge  which  are  expressly  given  by  the  instrument 
under  which  she  acquired  title. 

The  act  of  1 848  conferred  upon  married 
women  no  rights  as  to  the  disposition  of  property 
settled  to  their  separate  use  to  which  they  were  not 
before  entitled. 

To  bind  her  separate  property  for  medical  serv- 
ices, employed  for  the  family,  affirmative  proof 
of  a  request  by  her,  is  necessary. 

RHODE  ISLAND. — Intention  to  charge  must 
be  declared  in  w^riting,  or  the  contract  must  be  for 
the  benefit  of  herself  or  her  separate  estate. 

SOUTH  CAROLINA.— It  is  settled  law  in 
South  Carolina  that  a  married  woman  can  only  dis- 
pose of,  or  charge,  her  separate  estate,  in  the  execu- 
tion of  powers  conferred  by  the  instrument  creating 
it. 

Where  a  married  woman  is  to  receive  an  in- 
come for  her  sole  and  separate  use,  and  no  restric- 
tion is  imposed  upon  her  use  and  disposition  of  it, 
she  is  regarded  as  a  feme  sole  as  to  the  same,  and 
may  give  it  to  her  husband  after  it  has  been  paid  to 
her.  But  where  a  married  woman  gives  a  bond  to 
secure  the  payment  of  money  borrowed  by  the 
husband  for  his  own  use,  it  is  void,  and  cannot  be 
enforced  against  her  separate  estate.  Under  the 
South  Carolina  Constitution  a  married  woman  may 
alienate  her  equitable  estate  in  stock  held  by  her 

225 


WOMAN  UNDER  THE  LAW 

at  the  time  of  the  adoption  of  the  constitution;  and 
now  under  the  General  Statutes  of  South  Carolina, 
a  married  woman  "may  contract  and  be  contracted 
with  as  to  her  separate  property  in  the  same  manner 
as  if  unmarried.  " 

TENNESSEE. — A  married  woman  may  freely 
charge  her  separate  estate,  unless  restricted  by  the 
instrument  creating  it,  but  to  do  so  there  must  be  an 
express  intent  or  agreement,  and  it  cannot  be  made 
liable  by  implication.  Thus,  though  no  considera- 
tion passed  to  her,  she  may  mortgage  her  lands  to 
secure  the  debt  of  her  husband,  and  the  mortgage 
will  be  valid.  Where  she  holds  land  for  life,  with 
power  to  dispose  of  it  by  sale  or  will,  the  provision 
of  the  act  of  1  870,  giving  married  women  power  to 
sell,  etc. ;  or  mortgage  their  separate  realty,  provided 
the  power  is  not  expressly  withheld  in  the  deed  or 
will  under  which  they  hold  it,  does  not  give  her 
power  to  mortgage  the  same,  as  under  such  a  settle- 
ment the  power  to  mortgage  is  expressly  withheld 
in  the  sense  of  the  statute. 

In  order  that  a  judgment  against  a  married 
woman  may  bind  her  separate  estate,  the  claim  or 
debt  on  which  it  w^as  based  must  be  one  w^hich 
would  have  been  a  charge  on  the  estate  if  the  judg- 
ment had  not  been  rendered.  Where  a  wife  had 
separate  real  estate  both  in  Mississippi  and  Ten- 
nessee, a  Tennessee  court  of  chancery  refused  to 
charge  the  Tennessee  lands  with  expenditures  made 
for  the  benefit  of  the  Mississippi  estate. 

A  married  woman  may  charge  her  separate 
estate  by  a  contract  not  executed  by  a  privy  exam- 
ination, such  as  is  required  in  the  case  of  deeds,  but 
in  the  absence  of  power  conferred  by  the  instru- 
ment, a  woman  cannot  make  liable  for  her  hus- 
band's debt  property  given  to  her  trustee  for  her 

226 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

sole  and  separate  use  for  life,  and  at  her  death  to  her 
children. 

TEXAS. — It  has  been  held  in  Texas  that 
where  the  wife  had  separate  property,  and  negroes, 
and  there  was  no  common  property,  and  the  hus- 
band was  insolvent  and  unable  to  support  his  family, 
and  purchased  goods,  wares  and  merchandise,  which 
were  necessary  for  the  w^ife,  children,  and  negroes, 
and,  afterwards,  before  the  expiration  of  two  years, 
gave  his  note  for  the  same,  reciting  that  it  was  given 
for  the  goods,  wares,  and  merchandise  furnished  his 
wife,  family,  and  negroes,  the  separate  property  of 
the  wife  was  liable  for  the  payment  of  the  debt,  and 
that,  too,  notwithstanding  the  fact  that  more  than 
tw^o  years  had  elapsed  from  the  date  of  the  account 
or  delivery  of  the  articles,  before  the  commence- 
ment of  the  suit. 

But  unless  for  necessaries  for  herself  and 
fcmnily,  a  wife  cannot,  by  simple  contract,  even  in 
writing,  alone  or  jointly  w^ith  her  husband,  incum- 
ber her  separate  property;  though  she  may  mort- 
gage it  when  joined  by  her  husband. 

When  a  debt  is  incurred  for  the  protection  of 
the  separate  property  of  the  wife,  to  secure  which 
a  note  is  executed  voluntarily  by  husband  and  wife 
jointly,  judgment  may  be  rendered  on  the  note, 
directing  execution  to  be  levied  on  the  community 
property,  or  on  the  separate  property,  at  the  option 
of  the  plaintiff.  But  where  the  husband  has  no 
separate  estate,  and  there  is  no  community  prop- 
erty, and  the  wife  rents  a  house  for  the  use  of  her- 
self and  family,  such  rent,  if  of  reasonable  amount, 
is  a  valid  charge  upon  her  separate  estate. 

VERMONT. — There  must  be  some  express 
pledge,  or  some  benefit  resulting  to  the  wife  or  to 
the  separate  estate  in  order  to  charge  it. 

The   law   will   not   raise   an   implied   promise 

227 


WOMAN  UNDER  THE  LAW 

against  a  married  woman  when  she  cannot  make  a 
valid  contract. 

A  wife's  separate  estate  is  not  chargeable  for 
money  paid  by  her  father  to  a  third  person  as  surety 
for  her  husband ;  nor  for  repairs  made  on  her  house 
by  her  father,  who  lived  with  her,  to  suit  his  own 
convenience,  and  for  his  own  benefit,  he  not  con- 
sulting her,  the  repairs  being  unnecessary,  and  not 
adding  to  the  value  of  the  house,  and  there  being  no 
understanding  that  he  was  to  be  reimbursed;  but 
where  a  married  woman  promised  to  allow,  in  pay- 
ment of  a  man's  note,  services  rendered  by  him  in 
supporting  her  mother,  the  promise  was  enforced 
in  equity  against  her  separate  estate. 

VIRGINIA. — In  Virginia  a  married  woman  is 
considered  a  feme  sole  as  to  her  separate  estate,  un- 
less restricted  by  the  instrument  creating  it,  and  it 
may  be  charged  with  her  debts  and  contracts  gener- 
ally. She  may  cause  land  to  be  pledged  as  security 
for  her  husband's  debts. 

To  charge  her  separate  estate  for  her  notes,  she 
must  have  had  such  separate  estate  subject  to  her 
jus  disponendi  when  she  signed  the  notes,  and  must 
have  known  of  it  and  intended  to  charge  it.  But 
where  she  endorsed  a  negotiable  note  in  blank  to 
enable  her  husband  to  make  certain  purchases, 
which  he  failed  to  do,  and  afterwards  bought  a 
larger  amount  of  goods  than  w^as  originally  contem- 
plated at  the  time  of  the  endorsement,  and  filled  up 
the  blanks  to  suit  his  purchase,  the  wife  was  held 
bound  by  the  endorsement. 

The  court  of  equity  in  enforcing  the  liability 
of  a  married  woman's  separate  estate  for  her  gen- 
eral engagements,  w^ill  order  a  sale  of  the  personal 
estate  and  the  subjection  of  the  rents  and  profits  of 
the  lands,  until  the  debt  is  discharged. 

WEST  VIRGINIA.— The  separate  estate  of  a 

228 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

married  woman  is  liable  for  any  simple  contract 
debt  for  which  she  would  be  liable  if  a  feme  sole. 
A  consideration  for  such  debt  need  not  inure  to  her 
own  benefit  or  that  of  her  separate  estate;  it  may 
inure  to  the  benefit  of  her  husband  or  any  third 
party,  or  may  be  a  mere  prejudice  to  the  other  con- 
tracting party. 

Land  which  is  the  separate  estate  of  a  married 
woman  cannot  be  sold  for  debts  contracted  by  her 
during  coverture,  but  can  only  be  rented  during  the 
coverture. 

WISCONSIN. — The  separate  estate  of  a  mar- 
ried woman  may  be  charged  in  equity  with  the  pay- 
ment of  debts  contracted  for  her  benefit. 

As  has  been  seen,  the  contracts  of  a  married 
woman  are  enforced  in  a  proceeding  in  rem  against 
the  property,  and  are  not  binding  on  her  personally. 
The  property  will  be  charged  with  any  damage  re- 
sulting to  others  from  failure  to  keep  it  in  proper 
repair,  or  from  her  careless  management;  and  it 
has  even  been  held  that  she  would  be  personally 
liable. 

As  a  married  woman  is  considered  a  feme  sole 
as  to  her  separate  estate,  it  necessarily  follows  that 
she  may  sue  and  be  sued  in  equity  in  regard  to  it. 
She  may  obtain  an  order  to  answer  separately  as  a 
defendant,  have  a  conveyance  fraudulently  ob- 
tained set  aside  and  may  prevent  her  husband's 
creditors  from  seizing  her  property  for  his  debts. 
The  dealings  of  a  husband  with  the  separate  prop- 
erty of  his  wife  are  alw^ays  to  be  closely  scrutinized 
and  will  not  be  upheld  whenever  slight  evidence  of 
fraud  or  undue  influence  appears.  A  wife  may 
present  a  petition  without  her  husband,  and  will  be 
bound  by  her  separate  answer,  or  by  her  settlement 
of  accounts.  The  trustee  should  be  joined  with  her, 
though  she  had  been  allowed  to  sue  alone.     She 

229 


WOMAN  UNDER  THE  LAW 

may  foreclose  in  her  own  name  a  mortgage  that  has 
been  assigned  to  her,  although  the  note  is  held  by  a 
trustee  for  her  use.  But  the  husband  should  be 
made  a  party  defendant ;  especially  if  he  claims  any 
interest  in  the  separate  estate,  or  if  any  of  his  acts 
are  in  question.  She  must  be  made  a  party  to  all 
suits  to  subject  her  separate  estate  or  it  will  not 
affect  her  interest. 

A  judgment  recovered  by  a  tax  collector,  in  a 
suit  to  enforce  a  lien  against  a  married  w^oman's 
separate  property  for  unpaid  taxes,  could  not  affect 
her  interest  where  she  w^as  not  made  a  party  defend- 
ant, and  the  purchaser  at  the  tax  sale  under  the 
judgment  could  acquire  no  title. 

The  clause  against  alienation  and  anticipation 
in  a  settlement  in  trust  for  a  married  woman  be- 
comes inoperative  upon  the  termination  of  the 
coverture,  either  by  death,  or  an  absolute  divorce; 
and  a  w^ife  may  lose  her  separate  property  in  per- 
sonalty by  allowing  it  to  be  so  employed  or  in- 
vested as  to  become  mixed  with  other  funds  in  such 
a  manner  that  it  becomes  impossible  to  identify  or 
trace  it;  though  a  court  of  equity  will  throw^  safe- 
guards around,  and  see  to  the  proper  application  of 
a  trust  fund,  and  w^ill  follow  it  so  long  as  it  can  be 
clearly  and  distinctly  traced,  yet  when  the  means  of 
identification  fail,  the  pow^ers  of  the  court  in  refer- 
ence to  that  fund  must  also  cease. 

A  wife  may  lose  her  separate  property  by  put- 
ting it  in  the  husband's  possession  w^ithout  any 
agreement  that  he  shall  repay  it.  Thus,  w^here  a 
feme  covert,  vs^ho  had  a  separate  estate,  purchased 
articles  of  furniture  with  the  rents  and  profits  of 
such  estate,  and  put  them  into  the  possession  of  her 
husband  w^ithout  any  agreement  or  understanding 
with  him  that  he  should  hold  them  as  her  trustee,  or 
that  the  title  should  be  vested  in  any  other  person 

230 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

for  her  separate  use,  the  articles  thus  purchased 
were  held  to  become  the  property  of  her  husband 
and  liable  to  be  sold  for  his  debts.  But  where  the 
trustee  of  a  sum  of  stock  for  the  separate  use  of  a 
married  woman  improperly  transferred  it  into  the 
joint  names  of  her  husband  and  herself,  and  her 
husband  for  six  years  received  the  dividends,  after 
which  the  trustee  died,  and  the  husband,  without 
his  w^ife's  knowledge,  sold  out  the  stock  and  applied 
the  proceeds  to  his  own  use,  and  afterwards  left  her, 
it  was  held  that,  though  the  w^ife  might  have  been 
presumed  to  have  assented  to  his  actual  receipt  of 
the  dividends  while  the  stock  remained  intact,  yet 
no  such  assent  could  be  presumed  after  it  had  been 
so  sold,  and  that  she  was  entitled  to  recover,  as 
against  her  husband  and  the  estate  of  the  deceased 
trustee,  the  arrears  of  dividends  which  had  accrued 
since  that  time,  as  well  as  to  have  the  trust  fund 
replaced. 

Statutes  creating  a  separate  estate  for  a  mar- 
ried woman  do  not  interfere  with  the  separate  estate 
in  equity  or  prevent  the  creation  and  existence 
thereof;  the  New  York  Acts  of  1848  and  1849  are 
held,  how^ever,  to  have  converted  the  wife's  equit- 
able into  a  legal  estate.  The  jurisdiction  of  courts 
of  equity  over  these  estates  is  not  abridged  or  lim- 
ited by  virtue  of  such  statutes,  nor  do  they  affect 
the  construction  of  a  gift  in  trust  for  a  married 
woman.  The  statutes  are  to  enlarge  her  privileges 
and  not  to  take  away  any  pre-existing  common  law^ 
right.  Thus,  in  Alabama,  all  property  owned  by  a 
married  woman  is  presumptively  regarded  as  her 
statutory  separate  property,  and  the  burden  of  proof 
is  on  one  asserting  her  estate  to  be  equitable. 

A  man  took  a  mortgage  from  his  brother  for 
money  loaned.  He  having  died,  his  widow  pro- 
cured another  mortgage  to  herself  from  the  mort- 

231 


WOMAN  UNDER  THE  LAW 

gageor,  alleging  that  the  money  loaned  was  hers, 
and  surrendering  the  first  mortgage.  In  a  suit  by 
the  decedent's  administrator  to  foreclose  the  first 
mortgage,  it  was  held  that  the  burden  of  proof  was 
on  the  widow  to  show  that  it  was  her  money  and 
not  that  of  her  husband. 

Where  property  levied  on  is,  as  shown  by  the 
sheriff's  return,  in  the  possession  of  the  husband, 
but  is  claimed  by  the  wife  as  her  separate  property, 
the  burden  of  explaining  such  possession  is  on  the 
wife.  But  where  creditors  of  the  husband  levy  on 
personalty  which  the  wife,  who  has  a  separate  estate, 
claims  as  purchased  from  a  third  person  with  her 
own  means,  the  burden  of  proving  fraud  on  her 
part  is  on  the  creditors,  and  she  is  not  bound  to  show 
that  the  price  was  paid  with  her  own  money,  and 
not  that  of  her  husband. 

Where  a  husband  without  his  wife's  authority, 
executes  in  his  own  name  a  bill  of  sale  of  her  horse 
and  endorsed  thereon  an  order  to  his  wife  to  deliver 
the  horse  to  the  purchaser,  who  presented  the  order 
and  took  the  horse,  the  wife  neither  consenting  nor 
refusing  to  deliver  the  animal,  it  was  held,  in  an 
action  by  the  wife  to  recover  possession,  that  the 
court  having  charged  that  the  burden  was  on  the 
plaintiff  to  prove  that  the  horse  was  her  property, 
it  was  not  error  to  refuse  defendant's  instruction, 
that,  if  the  plaintiff  failed  to  schedule  her  property 
the  burden  w^as  on  her  to  prove  that  the  horse  was 
her  separate  property. 

But  in  Illinois  it  has  been  held  that  the  mar- 
ried woman's  act  of  1 861  was  not  designed  to  abro- 
gate the  common  law  presumption  that  the  husband 
owns  all  the  property  in  the  possession  of  the  wife 
while  they  are  living  together.  If  the  wife  clcdms 
the  benefit  of  the  act,  she  must  bring  herself  within 
its  provision  by  proof.     She  holds  the  affirmative 

232 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

of  the  issue  and  must  prove  it.  And  it  is  not 
sufficient  for  the  wife  to  prove  that  she  purchased 
the  property  from  a  person  other  than  her  husband 
during  coverture,  to  enable  her  to  hold  it  as  against 
her  husband's  creditors.  She  must  also  show  she 
obtained  in  good  faith  the  consideration  which  she 
paid  for  it  from  a  source  other  than  her  husband. 

And  in  New  Jersey,  where  a  wife,  possessed  of 
a  separate  estate,  permitted  her  husband  to  carry 
on  business  therein  in  her  name,  and  he  collected  the 
income  of  her  separate  estate,  and  made  expend- 
itures thereon,  it  was  held  in  a  creditor's  suit  to 
subject  the  wife's  realty  to  the  payment  of  her  hus- 
band's debts,  upon  the  ground  that  his  earnings  had 
been  expended  in  its  improvement,  that  if  the 
amount  expended  by  the  husband  on  the  wife's 
property  was  not  in  excess  of  the  amount  of  her 
separate  income  received  by  him,  the  presumption 
w^ould  be  that  he  applied  her  income  and  not  her 
earnings  to  the  improvement  of  her  estate. 

Whether  the  possession  of  chattels  by  a  mar- 
ried woman  is  prima  facie  evidence  of  ownership, 
is  disputed.  But  it  is  said  that  there  is  no  presump- 
tion of  law  that  money  or  negotiable  securities  in 
the  possession  of  the  wife  belong  to  her  husband 
rather  than  to  her.  Where,  however,  husband  and 
wife  are  living  together,  the  presumption  is  that  the 
personal  property  in  the  house  belongs  to  the  hus- 
band. The  fact  that  money  earned  by  the  joint 
labor  of  the  husband,  w^ife,  and  minor  children,  on 
a  farm,  and  from  the  sale  of  the  produce,  w^as  always 
kept  in  the  personal  possession  of  the  wife,  does  not 
rebut  the  presumption  that  the  title  thereto  was  in 
the  husband. 

A  husband  living  with  his  wife  is  presumed  to 
be  the  head  of  the  family;  and  the  fact  that  she 
makes  the  contract  for  board  and  received  the  pay 

233 


WOMAN  UNDER  THE  LAW 

therefore,  in  the  business  of  keeping  a  hotel  or 
boarding-house,  will  not  prove  the  receipts  to  be  her 
separate  property.  In  Texas,  however,  where  a 
married  woman  claimed,  as  against  her  husband's 
creditors  a  stock  of  goods,  it  was  held  that  the 
presumption  was  that  the  goods  w^ere  community 
property  and  not  her  separate  property,  and  that 
consequently  the  burden  of  proving  the  goods  to  be 
her  ow^n  was  upon  her. 

In  one  case,  where  the  circumstances  were 
peculiar,  an  exception  to  the  rule  in  the  text  above 
was  adopted.  A  husband  and  wife  had  died  within 
a  few^  hours  of  each  other.  The  w^ife  had  a  separate 
estate  and  income.  A  sum  of  money  w^as  found  in 
the  wife's  pocketbook,  another  sum  in  a  pocketbook 
marked  with  her  father's  name;  also  some  money 
in  a  bag,  and  some  coin  lying  loose — all  in  a  trunk 
marked  w^ith  the  wife's  name,  to  which  both  had 
access,  the  key  being  usually  kept  by  the  wife. 
Their  deeds,  bonds,  and  other  papers  were  also 
found  in  the  trunk.  There  was  nothing  to  show  the 
amount  contributed  by  either  one  to  the  money  so 
found.  It  v/as  held  that  they  should  be  considered 
as  owning  it  in  equal  shares. 

To  overcome  the  presumption  that  personal 
property  in  the  house  where  husband  and  w^ife  are 
living  together  is  the  property  of  the  husband,  the 
w^ife  must  show  that  she  owned  property  before  her 
marriage,  or  that  she  has  acquired  it  since  in  a  way 
entirely  independent  of  her  husband.  A  woman 
w^ho  never  released  to  her  husband  any  right  in  her 
property  ow^ned  at  the  time  of  the  marriage,  is 
presumed  to  have  continued  absolute  owner,  and  at 
her  death  her  real  estate  passes  to  her  heirs,  and  her 
personalty  to  her  personal  representatives. 

The  statutes  quite  generally  agree  in  making 
property,   real   or  personal,   ow^ned  by  a  married 

234 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

woman  at  the  time  of  her  marriage,  her  separate 
estate.  Where  an  unmarried  woman,  after  acquir- 
ing an  initiatory  right  to  pre-empt  land,  marries, 
and  then  pays,  and  takes  the  patent,  the  land  is  her 
separate  estate,  and  this,  whether  the  money  paid 
belonged  to  the  community  or  was  obtained  from 
the  sale  of  a  portion  of  the  land. 

A  deed  conveying  land  to  a  single  woman 
sufficiently  shows  the  land  to  be  her  separate  estate, 
though  followed  after  her  marriage  by  a  second  deed 
from  the  same  grantor  to  her  in  her  married  name, 
and  on  an  express  money  consideration. 

By  the  term  earnings  is  meant  money  or  prop- 
erty gained  by  labor,  services,  or  business  manage- 
ment. It  is  not  to  be  supposed  that  it  was  w^ithin 
the  contemplation  of  the  legislature  in  conferring 
upon  married  women  the  right  to  receive,  use,  and 
possess  their  own  earnings,  and  to  sue  for  the  same 
in  their  ow^n  names,  that  it  was  to  be  limited  to  such 
only  as  should  result  from  manual  labor,  or  that, 
in  conferring  upon  them  the  right  to  have  their 
separate  property  under  their  sole  and  separate 
control,  and  to  hold,  own,  possess,  and  enjoy  the 
same  as  though  they  were  sole  and  unmarried,  they 
were  to  be  restricted  in  its  use  or  disposition.  The 
right  to  contract  is  indispensable  to  the  acquisition 
of  earnings,  and  to  the  unrestricted  possession,  con- 
trol and  enjoyment  of  property.  I  can  perceive  of 
no  reason  why  a  married  w^oman,  invested  with 
these  rights,  may  not,  at  least  with  the  consent  of 
her  husband,  earn  money  in  trade,  as  well  as  at  the 
w^ashtub  or  w^ith  the  sewing-machine ;  why  she  may 
not  as  well  be  the  proprietress  of  a  grocery-store,  as 
of  a  farm;  contract  debts  for  goods  to  be  used  in 
trade,  as  for  animals  and  farming  implements,  or 
lands,  or  farm  labor.  In  removing  the  common  law^ 
restriction  upon  her  rights  to  acquire  and  control 

235 


WOMAN  UNDER  THE  LAW 

her  property,  the  legislature  has  left  her  to  deter- 
mine, at  all  events  when  her  husband  shall  not  ob- 
ject, from  the  dictates  of  her  own  judgment,  in  w^hat 
lawful  pursuit  she  will  engage,  and  whether  it  shall 
be  prosecuted  alone  or  in  conjunction  with  others. 

Married  w^omen's  property  acts  which  do  not 
specifically  mention  her  earnings,  do  not  change 
the  husband's  common  law  rights  as  to  the  same. 
So  a  statute  which  provides  that  a  w^ife  may  earn 
money  on  her  separate  account,  does  not  affect  any 
earnings,  of  hers,  unless  they  appear  to  have  been 
acquired  by  her  on  her  separate  account.  But  the 
wife's  earnings  may  be  secured  to  her  separate  use 
by  the  assent  of  her  husband,  or  by  a  settlement 
made  either  before  or  at  the  marriage.  Or  a  hus- 
band may  give  his  wife  her  earnings;  but  such  gift 
must  not  defraud  creditors,  and  the  burden  lies  upon 
the  wife  to  prove  clearly  the  gift. 

In  most  of  the  states'  statutes  it  is  expressly 
provided  that  the  wife's  earnings  shall  be  her 
separate  property,  free  from  liability  for  the  debts 
of  her  husband.  But  the  married  women's  statutes 
cannot  deprive  the  husband  of  money  for  the  wife's 
services  already  paid  or  due.  The  right  of  a  wife 
to  hold  property  is  as  absolute  as  that  of  any  other 
person,  and  whether  she  paid  anything  for  it  or  not, 
does  not  concern  her  husband's  creditors,  so  long  as 
it  did  not  come  through,  or  in  some  way,  from  him. 
Thus,  where  a  wife  used  in  the  purchase  of  real 
estate  her  earnings  before  marriage,  saving  out  of 
money  given  her  by  her  husband  for  household  ex- 
penses, and  money  borrowed  by  her,  it  was  held  that 
the  absence  of  evidence  of  fraudulent  designs  to- 
wards the  husband's  creditors,  the  debts  of  the  hus- 
band could  not  be  charged  upon  the  land,  the  same 
having  been  purchased  by  the  wife  a  year  before 
the  debt  w^as  contracted. 

236 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

Where  land  was  conveyed  to  the  wife,  and  it 
appeared  that  she  had  funds,  and  the  husband  had 
none,  and  that  it  was  the  expectation  of  all  parties 
that  the  wife  should  pay  for  the  land,  it  was  held 
that  the  fact  that  the  husband  gave  his  note  to  the 
vendor,  did  not,  in  the  absence  of  fraud  or  collusion, 
prevent  the  land  becoming  the  wife's  separate  es- 
tate. 

A  married  woman  who  uses  her  separate  statu- 
tory property  to  purchase  real  estate,  and  has  the 
same  conveyed  to  her  sole  and  separate  use,  does 
not  thereby  change  the  character  of  her  estate,  so 
as  to  make  it  equitable. 

A  wife,  who  had  been  declared  a  feme  sole  by 
decree  of  court,  purchased  at  a  judicial  sale  land 
which  belonged  to  her  husband  and  w^hich  had  been 
mortgaged  by  him.  She  paid  for  it  with  the  pro- 
ceeds derived  from  her  general  estate,  which  pro- 
ceeds had  never  been  reduced  into  possession  by  the 
husband.  It  was  held  that  the  land  so  purchased 
was  not  bound  by  a  judgment  obtained  against  the 
husband  upon  a  debt  created  by  him  prior  to  said 
purchase. 

In  Alabama,  the  services  and  earnings  of  a 
married  woman  belong  presumptively  to  her  hus- 
band and  after  his  death  to  his  personal  representa- 
tive. To  enable  a  wife  to  maintain  a  suit  for  such 
earnings,  she  must  allege  that  her  husband's  estate 
had  no  creditors,  or  else  that  his  debts  were  paid, 
and  also  allege  facts  showing  a  relinquishment  by 
the  husband,  express  or  implied,  of  the  earnings  to 
her. 

In  Georgia,  it  was  held  that  the  earnings  of  a 
married  w^oman  prior  to  1866,  w^here  she  was  not 
a  free  trader  and  did  not  live  separately  from  her 
husband,  belonged  to  her  husband ;  and  that,  where 
he  bought  land  with  such  earnings  in  his  own  name, 

237 


WOMAN  UNDER  THE  LAW 

no  trust  in  the  wife's  favor  could  be  implied  as 
against  a  creditor  of  the  husband  whose  debt  was 
contracted  after  the  purchase  of  the  property,  and 
who  had  no  notice  of  an  alleged  trust. 

In  an  action  to  recover  of  executors  for  ten 
years*  services  as  housekeeper  for  the  testator,  who 
was  plaintiff's  father,  it  appeared  that  she  had  sepa- 
rated from  her  husband,  and  supported  herself  by 
her  earnings.  It  was  held  that  she  was  entitled  to 
bring  the  suit,  the  wages  belonging  to  her. 

If  a  married  woman  appropriates  to  the  pay- 
ment of  her  husband's  debts  the  earnings  made  by 
her  for  services  performed  on  her  sole  account,  she 
cannot  reclaim  them. 

In  West  Virginia,  where  a  married  w^oman, 
who  claimed  the  fund  garnished  for  the  debt  of  her 
husband,  had  no  separate  estate,  and  there  was  no 
marriage  settlement,  and  it  appeared  that  the  money 
claimed  was  earned  by  her,  while  living  with  her 
husband,  and  in  part  w^as  acquired  by  her  by  raising 
cattle  on  her  husband's  farm,  and  that  another  part 
was  given  her  by  her  son  before  the  adoption  of 
the  law  providing  for  separate  estates  of  married 
women,  the  money  was  held  to  be  the  property  of 
the  husband. 

Under  the  Indiana  law^  entitling  a  married 
woman  to  the  earnings  of  her  separate  business, 
she  may  buy  a  note  with  such  earnings,  and  her 
husband's  endorsement  will  pass  the  title  of  the 
note  to  her,  so  as  to  enable  her  to  sue  the  maker. 

The  equity  obtained  by  a  wife  who  has  pur- 
chased land,  paying  part  of  the  purchase  money, 
and  taking  bond  for  title  on  payment  in  full,  is  her 
statutory  separate  estate. 

The  provision  of  the  Rhode  Island  statutes 
that  property  acquired  by  a  woman  after  marriage 
by  her  own  industry,  shall  be  absolutely  secured 

238 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

to  her  sole  and  separate  use,  is  sufficient  to  enable 
a  woman  to  recover  for  board  furnished  by  her 
father  after  her  separation  from  her  husband  and 
before  her  divorce. 

But  in  some  states  the  wife's  earnings  are  held 
to  be  her  separate  property  free  from  liability  for 
the  debts  of  her  husband  only  where  the  husband 
fails  to  provide  for  her,  or  where,  for  other  reasons, 
the  wife  lives  apart  from  her  husband. 

The  earnings  and  accumulations  of  a  w^ife  liv- 
ing separate  from  her  husband  are  her  separate 
property.  But  the  fact  that  a  note  and  mortgage 
were  given  by  a  wife  while  living  apart  from  her 
husband,  does  not  of  itself  prove  that  the  lands 
described  in  the  mortgage  were  her  separate  prop- 
erty. 

A  husband  left  his  wife  on  account  of  domestic 
infelicity,  and  resolved  during  his  absence  never  to 
resume  marital  relations  with  her,  but  to  provide  for 
his  family  when  necessary.  The  w^ife  and  children 
lived  together,  supported  by  her  exertions.  It  was 
held  that  this  was  a  separate  living  within  the  Cali- 
fornia statute  providing  that  the  wife's  earnings, 
while  she  is  living  separate  from  her  husband,  shall 
be  her  separate  property. 

The  California  Act  of  March  9,  1870,  which 
provides  that  while  the  wife  lives  separate  and  apart 
from  her  husband  she  shall  have  the  sole  use  of  her 
property,  and  may  sue  and  be  sued,  etc.,  does  not 
apply  to  a  case  where  the  w^ife  is  temporarily  absent 
from  her  husband  with  his  consent,  but  to  cases 
where  there  has  been  an  abandonment  on  the  part 
of  the  husband  or  wife,  or  a  separation  w^hich  is 
intended  to  be  final. 

An  agreement  between  husband  and  wife  that 
the  w^ife's  earnings  in  any  special  transaction  shall 

239 


I 


WOMAN  UNDER  THE  LAW 

belong  to  her,  vests  in  her  all  claim  on  account  of 
such  service. 

In  a  Minnesota  case  an  agreement  between 
husband  and  wife  that  the  latter  should  receive  the 
compensation  to  be  earned  by  her  in  nursing  a 
boarder  in  the  family  who  paid  the  husband  for  his 
board,  was  held  to  vest  in  her  any  claim  accruing  on 
account  of  such  nursing,  and,  there  being  no  ques- 
tion of  set-off  or  counter-claim,  it  was  considered  to 
be  immaterial  that  the  boarder  did  not  know  of  such 
agreement. 

If  a  husband  consent  that  his  wife  may  take 
boarders  into  the  family,  and  that  she  shall  have 
the  gross  proceeds  for  application  on  a  contract 
which  he  has  made  with  a  third  person  for  the  pur- 
chase of  real  estate,  and  if  the  money  so  acquired 
by  the  wife  be  thus  applied,  the  money  is  hers,  and 
not  his.  If,  on  completing  payment,  the  wife  takes 
the  conveyance  of  the  premises  to  herself  from  such 
third  person,  her  title  w^ill  prevail  against  a  creditor 
of  her  husband  who  gave  credit  after  the  property 
w^as  paid  for,  though  the  conveyance  to  her  be  of 
later  date  than  the  giving  of  such  credit. 

The  product  of  all  labor  of  the  w^ife  for  persons 
other  than  her  husband,  belongs  to  her,  and  the  fact 
that  the  husband  acted  as  the  wife's  agent  in  con- 
tracting for  the  rendering  of  services  by  her,  does 
not  affect  her  individual  claim  for  compensation. 
A  wife  can  contract  for  her  services,  and  sue  alone 
on  the  contract,  making  her  husband,  if  need  be, 
garnishee.  But  the  married  w^oman's  statutes  do 
not  impliedly  authorize  her  to  contract  with  her  hus- 
band for  her  services,  and  she  cannot  recover  from 
him  for  services  rendered,  unless  contracts  between 
husband  and  wife  are  by  statute  expressly  author- 
ized. A  wife's  earnings,  however,  in  connection 
with  her  husband's  property,  by  keeping  boarders, 

240 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

selling  butter,  milk,  etc.,  are  his,  not  hers,  and  prop- 
erty bought  with  them  may  be  reached  by  his 
creditors. 

In  Missouri,  services  rendered  by  a  wife  for 
another,  for  compensation,  are,  both  by  statute  and 
common  law,  presumed  to  be  performed  on  the 
husband's  behalf. 

A  wife  may  lawfully  contract  with  a  firm  of 
which  her  husband  is  a  member,  to  run  a  boarding- 
house  for  it  for  a  share  of  the  profits,  and  the  shares 
so  earned  by  her  will  be  her  separate  estate. 

The  profits,  rents,  increase,  products  and  in- 
terest of  statutory  separate  property  are  also  sepa- 
rate property,  w^hether  the  statute  says  so  or  not. 
But  in  Texas  the  interest  of  money  acquired  by  gift, 
devise,  or  descent,  is  held  not  to  be  property 
acquired  by  gift,  devise  or  descent,  and  consequent- 
ly not  the  wife's  separate  property.  In  Alabama  a 
statute  giving  the  husband,  as  trustee  of  the  statu- 
tory separate  estate  of  the  wife,  the  right  to  control 
it  without  liability  to  account  to  the  wife  for  the 
rent,  etc.,  but  not  subjecting  such  rent,  etc.,  to  his 
debts,  it  w^as  held  that  land  purchased  in  the  name 
of  the  wife  with  such  rent  could  not  be  made  liable 
for  the  husband's  debts. 

The  rule  applies  both  to  realty  and  personalty. 
The  Minnesota  statute  provides  specially  that  the 
rents,  profits  and  increase  of  real  estate  shall  be  the 
wife's  property.  It  was  held  under  this  statute  that 
the  naming  of  the  increase  of  realty  did  not  exclude 
the  increase  of  personalty.  Hence  the  wife  can 
maintain  replevin  against  any  creditor  of  her  hus- 
band, or  against  any  officer  who  seizes  the  property 
of  her  separate  estate. 

Where  a  husband  helps  to  farm  his  wife's  land 
the  crops  are  presumed  to  be  hers,  not  his.  And  the 
same  is  true  where  a  married  woman  owns  and 

241 


WOMAN  UNDER  THE  LAW 

occupies  a  farm;  the  mere  fact  that  her  husband 
lives  with  her  on  the  farm  and  assists  with  the  cul- 
tivation and  management,  will  not  w^arrant  an  in- 
ference that  the  crops  vested  in  him.  The  wife's 
right,  therefore,  through  the  profits  is  not  affected 
by  the  fact  that  the  husband  assisted  in  earning 
them.  To  illustrate, — the  fact  that  a  business  be- 
longing to  a  married  woman  is  profitable  mainly 
through  the  labor,  energy,  and  skill  of  her  husband, 
who  is  its  general  manager,  does  not  make  the 
profits  liable  for  his  debts,  so  long  as  the  parties  are 
acting  in  good  faith. 

In  some  states  the  increase  of  statutory  sepa- 
rate estate  is  provided  for  by  statute.  Thus,  in 
Alabama  a  husband  has  full  power  thereover  and  is 
not  accountable  to  his  wife  for  her  rent  and  profits. 

The  general  rule  is  that  property  purchased 
with  the  w^ife's  money  belongs  to  the  wife,  and  is 
not  subject  to  the  husband's  debts.  This  is  espe- 
cially true  where  the  property  w^as  purchased  out  of 
the  earnings  of  the  w^ife  prior  to  her  marriage. 
Where  real  estate  was  bought  by  a  woman  with 
her  own  means,  and  before  marriage  conveyed  to  a 
trustee  to  hold  for  her,  and  to  be  conveyed  upon 
her  w^ritten  request,  such  estate  was  held  to  be  her 
separate  property.  Where  the  purchase  was  made 
w^ith  money  acquired  subsequently  to  the  mar- 
riage, there  are,  in  some  states,  qualifications 
of  the  rule,  such  as  that  the  earnings  must 
have  been  derived  from  an  employment  by  a 
third  person.  Thus  in  Kentucky,  unless  the  w^ife's 
earnings  are  derived  in  this  way,  such  earnings  be- 
long to  the  husband  and  lands  purchased  w^ith  them 
w^ill  be  subject  to  the  husband's  debts. 

The  fact  that  property  was  purchased  in  part 
with  the  wife's  funds  does  not  confer  the  entire 
ownership  upon  the  wife,  although  it  seems  that 

242 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

she  will  be  considered  to  own  such  a  proportion  in 
the  property  bought  as  the  funds  furnished  by  her 
bear  to  the  whole  price.  In  an  Alabama  case  it  was 
held  that  where  the  husband  mixed  some  of  the  in- 
come of  his  wife's  statutory  separate  estate  with 
moneys  of  his  own,  purchasing  lands  and  taking 
title  to  himself,  this  fact  did  not  give  the  wife  owner- 
ship in  the  property  so  purchased. 

But  where  at  the  time  of  the  marriage  the  wife 
contributed  from  her  separate  property  all  the  stock 
and  capital  of  the  business,  except  a  few  goods  put 
in  by  the  husband,  and  the  stock  on  hand  at  his 
death  was  less  than  the  amount  of  her  original  in- 
vestment, it  was  held  that  the  stock  was  her  separate 
property.  But  if  there  is  no  way  of  distinguishing 
the  property  purchased  by  the  wife,  the  w^hole  is 
presumed  to  belong  to  the  husband.  Property 
bought  with  money  lent  by  the  wife  to  her  husband 
belongs  to  the  husband.  To  illustrate, — A  lent 
money  to  her  husband  to  do  business  w^ith.  He 
formed  a  partnership  with  B,  A  furnishing  no  more 
money  until  she  bought  B  out,  her  husband  then 
having  entire  control  and  management  of  the  busi- 
ness and  having  an  equal  interest  with  her  therein. 
After  buying  B  out,  she  purchased  certain  goods 
which  were  levied  on  upon  an  execution  against 
the  firm.  It  was  held  that  she  could  not  replevin 
the  same  as  her  individual  property. 

In  another  case  which  w^as  an  action  by  a  wife 
to  recover  from  her  husband  money  alleged  to  have 
been  paid  by  her  in  building  and  furnishing  their 
house,  complainant  testified  that,  w^hen  she  gave 
defendant  the  money,  she  told  him  to  pay  it  on  her 
home,  "he  took  the  money  and  paid  it  out.  It  w^ent 
into  the  house.  It  w^as  for  the  purpose  of  paying 
the  contractor."  This  was  held  to  be  inconsistent 
with  the  idea  of  a  loan  or  trust. 

243 


WOMAN  UNDER  THE  LAW 

A  loan  of  money  by  a  married  woman  to  her 
husband,  prior  to  the  Illinois  Married  Woman's  Act 
of  1861,  would  invest  him  with  the  ownership,  and 
she  w^ould  cease  to  have  any  interest  therein;  but  a 
loan  made  after  that  act  makes  her  simply  her  hus- 
band's creditor,  and  if  he  invests  the  money  in  land 
in  his  own  name  no  trust  results  in  her  favor. 

The  husband,  as  well  as  the  third  person,  may 
act  as  the  wife's  agent  in  making  the  purchase  of 
property.  Where  it  appeared  that  at  the  time  of 
the  decree  making  the  wife  a  feme  sole,  she  ow^ned 
no  property  at  all,  and  that  her  husband  subse- 
quently bought  goods  and  conducted  business  in  her 
name,  realizing  large  profits,  it  w^as  held  that  the 
property  was  subject  to  the  husband's  debts. 

The  right  of  the  wife  to  her  property  is  not 
affected  by  the  fact  that  it  has  been  listed  by  the 
husband  for  taxation  as  his.  Property  bought  by  a 
wife,  in  her  name,  after  the  institution  of  her  suit 
for  a  divorce  and  separation  of  property,  which 
w^ere  subsequently  decreed  in  her  favor  is  presumed 
to  be  her  separate  property. 

Acquisition  by  gift  is  quite  generally  enumer- 
ated in  the  statutes  as  one  of  the  methods  by  which 
a  statutory  separate  estate  may  be  acquired;  and 
where  property  is  given  to  a  wife,  the  presumption 
is  that  it  was  intended  to  be  for  her  separate  use. 
In  Massachusetts  a  promissory  note  made  payable 
to  a  married  w^oman  at  the  request  of  her  husband, 
upon  a  consideration  moving  solely  from  him,  is  a 
voluntary  gift  from  him,  and  she  does  not  acquire 
a  title  to  it  as  her  sole  property  free  from  his  con- 
trol, and  cannot  maintain  an  action  on  it  in  her  own 
name.  A  gift  for  the  "sole"  use  of  a  w^oman  is 
equivalent  to  a  gift  for  her  "separate"  use,  no  tech- 
nical w^ords  being  requisite  in  such  a  case.  It  has 
been  held  that  "gift"  has  the  same  meaning  as  "gift 

244 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

or  grant,"  and  that  a  gift  of  personalty  may  be  by 
parol. 

Real  estate  conveyed  to  a  married  woman  is 
her  separate  legal  property,  and  the  instrument  need 
not  contain  words  show^ing  that  the  property  was 
meant  to  be  separate.  If  the  grantor  is  the  husband 
the  conveyance  must  not  be  to  the  prejudice  of  his 
creditors,  but  the  consideration  must,  as  a  rule,  be 
advanced  by  the  wife.  Thus,  the  mere  recital  in  a 
deed  from  a  husband  to  his  wife  that  a  valuable  con- 
sideration has  been  paid  to  the  use  of  the  husband 
from  money  of  her  statutory  separate  estate  does 
not  create  in  the  wife  the  statutory  estate  in  the 
land,  unless  the  consideration  was  in  fact  paid  as 
recited. 

Property  acquired  by  the  wife  by  exchange  is 
as  much  her  separate  estate  as  property  acquired  by 
purchase.  Thus,  personalty  received  in  exchange 
for  other  separate  property  is  itself  separate  prop- 
erty. Under  this  head  may  be  put  the  conversion 
of  the  wife's  land  and  the  money,  in  which  case  the 
proceeds  will  be  her  separate  estate,  notwithstand- 
ing the  lands  may  have  been  acquired  by  the  wife 
during  marriage,  and  before  the  passage  of  the  mar- 
ried woman's  law  of  Alabama. 

Property  acquired  by  a  married  woman,  by 
devise,  bequest,  descent  or  distribution  is  her  sepa- 
rate statutory  estate.  Under  this  head  is  included  a 
distributive  share  which  vested,  before  the  wife's 
marriage,  upon  her  father's  death,  but  was  not  paid 
until  after  the  marriage. 

Property  conveyed  to  the  husband  in  trust  for 
his  wife  is  her  statutory  separate  estate.  Whenever 
a  husband  obtains  possession  of  the  w^ife's  separate 
property,  whether  with  or  without  her  consent,  he 
is  deemed  in  the  absence  of  evidence  that  she  in- 
tended to  make  him  a  gift  of  it,  to  hold  it  in  trust 

245 


WOMAN  UNDER  THE  LAW 

for  his  wife.  Where  the  husband  purchases  prop- 
erty for  the  wife,  the  presumption  is  that  the  money 
invested  is  the  wife's  separate  estate.  A  husband 
who  invests  money  received  by  the  w^ife  as  a  gift 
from  her  father,  and  takes  title  to  the  property  so 
purchased  in  his  own  name  w^ithout  her  written  con- 
sent, is  merely  a  trustee  for  the  benefit  of  his  w^ife. 
A  policy  of  life  insurance  taken  out  by  the  hus- 
band for  the  benefit  of  his  w^ife  is,  generally,  under 
the  statutes,  her  separate  property. 

Choses  in  action  may  form  part  of  a  married 
woman's  separate  estate,  and  may  be  acquired  in 
any  of  the  ways  enumerated;  as,  by  purchase,  ex- 
change, etc. 

The  statutes  enlarging  the  rights  of  married 
women  and  providing  for  their  separate  estate  are 
broad  enough,  generally  speaking,  to  embrace  dam- 
ages arising  out  of  torts  to  their  persons  or  property. 
Where  a  wife  owns  separate  property  in  one 
jurisdiction  and  moves  with  her  husband  into  an- 
other, such  property  remains  her  separate  estate. 
But  in  the  absence  of  evidence  of  what  is  the  law^ 
of  the  state  from  which  part  it  came,  the  common 
law  rules  will  be  applied. 

The  legislature,  in  creating  a  separate  statutory 
estate  for  the  wife  may,  and  usually  does,  provide 
the  mode  for  its  disposal.  A  provision  that,  as  to 
such  property  the  wife  should  have  the  same  rights 
and  powers  as  if  unmarried,  has  been  held  to  give 
her  power  to  convey  and  dispose  thereof  freely 
without  the  husband's  consent,  save  only  that  to 
pass  his  curtesy  he  must  join  in  the  deed.  But 
provision  that  it  should  be  under  her  sole  control, 
and  held,  owned,  possessed,  and  enjoyed  by  her  the 
same  as  though  she  were  sole  and  unmarried,  or  that 
it  should  continue  hers  as  fully  after  marriage  as 
before,  have  been  held  not  to  give  her  the  power  of 

246 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

disposal  without  the  husband's  consent,  though  she 
could  execute  a  lease  thereof  for  a  term  of  years. 

As  a  general  rule  a  married  woman  may  charge 
her  statutory  separate  estate  with  her  debts  and  con- 
tracts made  in  reference  thereto.  To  illustrate, — An 
agreement  by  a  married  woman  to  pay  for  the  board 
of  her  husband  with  her  earnings  is  binding  on  her, 
though  her  earnings  are  her  separate  property.  A 
contract  to  build  a  house  on  her  land  is  one  in 
reference  to  her  separate  property,  and  when  signed 
by  herself  and  husband  she  will  be  liable  upon  her 
acceptance  of  an  offer  drawn  upon  them  jointly  by 
the  contractor.  The  intent  to  charge  may  be  in- 
ferred from  the  surrounding  circumstances,  a 
specific  agreement  not  being  always  necessary.  To 
illustrate, — In  the  absence  of  evidence  to  the  con- 
trary, it  will  be  presumed  that  money  borrowed  by 
a  married  woman  on  a  post-dated  check,  she  hav- 
ing a  separate  estate,  carrying  on  business  in  rela- 
tion thereto,  and  keeping  a  bank  account  in  her  own 
name,  was  borrowed  for  the  benefit  of  her  separate 
estate,  and  she  will  be  held  liable  therefor.  Where 
a  butcher  refused  to  give  further  credit  to  a  hus- 
band, and  the  wife,  who  conducted  the  household 
affairs  and  had  a  separate  estate  liable  to  be  charged 
with  the  debt,  though  she  carried  on  no  separate 
business,  said  in  reply  to  his  remark  that  if  he 
wanted  to  run  a  bill  he  would  charge  it  to  her,  "you 
will  not  get  cheated  out  of  it,  if  you  do  1  will  see 
you  paid  ";  it  was  held  not  to  be  a  sufficient  indica- 
tion of  an  intent  to  charge  the  separate  estate,  and 
the  butcher  could  not  recover.  In  some  states  she 
must  have  a  separate  estate  in  order  that  her  con- 
tracts may  be  enforced  against  her.  She  may  be 
liable  upon  her  contracts  though  not  charged  upon 
the  separate  estate,  where  they  inure  to  her  benefit 
or  that  of  the  estate,  or  for  necessaries  furnished  the 

247 


WOMAN  UNDER  THE  LAW 

family.  Whenever  she  buys  goods  on  credit,  she 
benefits  her  separate  estate  to  the  extent  of  the  pur- 
chase, if  she  had  no  separate  estate  before  she  ac- 
quired one  by  the  purchase.  In  Pennsylvania  she 
may  bind  her  separate  estate  for  services  necessary 
in  harvesting,  housing  and  marketing  a  crop;  and 
her  recorded  contract  for  supplies  for  her  separate 
plantation  binds  the  crops  grown  that  year.  She 
may  bind  her  separate  estate  by  contracts  of  surety- 
ship, unless  disqualified  by  statutes,  and,  if  the 
statute  gives  her  the  general  power  to  contract,  it 
will,  of  course,  include  the  power  to  confess  a  judg- 
ment. The  separate  property  will  be  charged  w^ith 
the  costs  of  the  suit  brought  by  the  wife  in  respect 
to  it,  and  she  may  bind  it  by  an  agreement  to  pay 
attorney's  fees. 

As  a  general  rule  in  those  states  in  which  the 
rule  of  the  common  law^,  respecting  the  power  of  a 
married  woman  to  bind  herself  by  contract,  has  been 
modified  by  statute,  a  promissory  note  made  by  a 
married  w^oman  as  principal  or  surety,  or  endorsed 
by  her,  is  binding  upon  her  separate  property.  A 
married  woman  is  not  bound  as  a  surety  upon  a 
note,  unless  it  appears  that  she  became  such  with 
an  intention  to  bind  her  separate  estate.  In  Indiana 
the  rents  and  profits  of  a  married  w^oman's  separate 
estate  cannot  be  subjected  to  the  payment  of  a  note 
executed  by  her,  w^here,  by  the  note  itself,  she 
agreed  to  pay  from  her  own  separate  property  the 
amount  stated  therein.  In  Virginia,  the  contracts 
of  a  married  woman,  including  her  promissory 
notes,  are  enforceable  only  against  her  separate 
estate  owned  at  the  time  of  entering  into  the  agree- 
ment. Although  a  note  given  by  a  wife  for  her 
husband  expressly  binds  the  wife's  separate  estate, 
a  policy  of  insurance  on  the  husband's  life  is  not 
covered  thereby,  since,  until  the  death  of  her  hus- 

248 


I 


SEPARATE  PROPERTY  OF  MARRIED  WOMEN 

band  she  has  no  such  interest  in  the  policy  as  can  be 
the  subject  of  a  charge.  Where  a  married  woman 
endorsed  upon  a  promissory  note :  "I  hereby  charge 
my  separate  and  personal  estate  for  the  payment  of 
the  within  note,"  the  instrument  was  held  not  to 
be  a  mortgage,  in  any  sense,  but  simply  a  personal 
security  which  a  national  bank  is  not  prohibited 
from  taking.  And  the  same  is  true  of  a  note  en- 
dorsed for  her  accommodation  or  endorsed  by  her 
for  the  accommodation  of  her  husband.  The  rule  in- 
cludes also  a  note  made  by  her  jointly  with  her  hus- 
band, unless  it  appeared  that  she  signed  the  note 
only  because  her  husband  asked  her  to,  and  without 
knowing  the  use  to  be  made  of  it.  In  some  juris- 
dictions, however,  the  rule  prevails  that  a  married 
woman's  promissory  note,  in  order  to  be  valid,  must 
be  for  the  benefit  of  her  business  or  estate,  or  must 
have  been  made  with  reference  to  her  separate  prop- 
erty. But  it  has  been  held  that  the  fact  of  a  wife 
signing  a  note  with  her  husband  is  prima  facie 
evidence  of  her  intention  to  charge  her  separate  es- 
tate. 

When  a  married  woman  is  not  allowed  by  law 
to  enter  into  a  contract  with  her  husband,  a  note 
given  to  him  is  not  binding  on  her  statutory  separate 
estate;  and  when  she  is  not  empowrered  to  make  a 
contract  of  suretyship,  she  cannot  be  held  liable 
upon  her  endorsement  given  to  secure  the  debt  of 
another. 

A  mortgage  executed  by  the  wife  upon  her 
statutory  separate  estate  is  binding;  but  in  some 
states  with  the  qualifications  that  it  must  have  been 
given  to  secure  debts  contracted  for  her  own  benefit 
or  for  the  benefit  of  her  estate,  a  married  woman 
may  mortgage  her  land  to  secure  her  husband's 
debt;  if,  however,  she  gives  her  note  for  the  debt 
and  gives  a  mortgage  to  secure  the  note,  the  note 

249 


WOMAN  UNDER  THE  LAW 

being  void,  the  mortgage  cannot  be  enforced. 
Where  a  married  woman  inserted  in  her  mortgage 
a  declaration  that  she  "hereby  makes  a  payment  oi 
the  moneys,  hereby  secured,  a  charge  upon  her 
other  sole  and  separate  estate,"  it  was  held  that  her 
other  separate  estate  was  not  thereby  charged  as 
against  one  afterw^ards  purchasing  it  in  good  faith 
and  for  value. 

Where  a  husband  and  wife  join  in  a  mortgage, 
the  w^ife's  separate  estate  is  similarly  bound.  In 
those  states  in  which  a  married  woman  is  not  al- 
low^ed  by  law^  to  charge  her  separate  estate  for  the 
benefit  of  her  husband,  a  mortgage  given  for  a  debt 
of  the  husband  is  necessarily  void. 

A  married  w^oman  may  manage  her  separate 
estate  as  well  by  agent  as  in  person,  and  may  ap- 
point her  husband.  She  w^ill  be  liable  for  any  debts 
or  charges  incurred  by  him  in  the  management  of 
the  estate,  but  the  authority  must  be  shown.  The 
separate  estate  of  a  married  w^oman  cannot  be 
charged  with  the  debts  of  a  company,  to  the  amount 
of  stocks  standing  in  her  name,  w^here  the  stock  w^as 
entered  on  the  books  of  the  company  by  the  author- 
ity of  her  husband,  a  director,  who  voted  and 
represented  it,  and  it  did  not  appear  that  she  had 
authorized  or  ratified  his  acts,  or  claimed  any  in- 
terest in  the  stock,  or  received  any  dividends  there- 
from; and  it  is  a  question  for  the  jury  whether  upon 
the  evidence  the  agency  was  authorized,  A  party 
w^ho  credits  the  husband  individually  may  charge 
the  wife  upon  discovering  his  agency. 

If  a  w^ife  avails  herself  of  the  result  of  her  hus- 
band's fraud,  while  acting  as  agent  in  reference  to 
her  separate  property  she  is  liable  therefor  as  though 
unmarried ;  and  w^here  he  knowingly  leased  her  real 
estate  for  the  unlaw^ful  sale  of  liquor  it  was  held 

250 


SEPARATE  PROPERTY  OF  MARRIED  \/^OMEN 

that  the  state  had  a  lien  thereon  for  the  fines  im- 
posed on  the  seller. 

The  power  of  a  married  woman  to  will  her 
statutory  separate  property  is  usually  regulated  by 
the  statutes  creating  the  estate,  most  of  the  separate 
property  acts  giving  her  the  authority  to  do  so. 

As  a  general  rule,  it  may  be  said,  the  statutes  of 
the  different  states  exempt  the  wife's  statutory 
separate  estate  from  liability  for  the  debts  of  the 
husband,  and,  in  the  absence  of  fraud,  his  creditors 
have,  generally,  no  rights  whatever  against  the 
property.  Not  even  where  the  separate  property 
consisted  of  store  fixtures  and  other  utensils  which 
she  permitted  her  husband  to  use  in  his  business. 
But  where  she  gives  her  husband  the  use  of  her  farm 
and  the  personalty  thereon,  his  creditors  may  attach 
hay  severed  by  him  from  the  land  before  the  license 
is  revoked.  And  where  a  married  woman  went  into 
business  w^ith  a  stock  of  goods  purchased  with  her 
separate  means,  and  bought  on  credit  and  in  her 
husband's  name,  and  replenished  the  stock  from 
time  to  time,  and  so  continued  for  several  years,  and 
it  could  not  be  shown  how  much  of  capital  and  how 
much  of  profits  were  used  by  her  in  keeping  up  the 
stock  of  goods,  it  w^as  subjected  to  her  husband's 
debts.  And  so,  also,  where  land  was  purchased  in 
the  wife's  name  with  the  husband's  money  after  a 
debt  accrued  on  which  a  judgment  was  founded. 

In  Alabama  the  wife  can  neither  sell  or  mort- 
gage her  separate  property  for  the  payment  of  her 
husband's  debts. 

In  Louisiana  a  married  woman  may  bind  her 
separate  estate  by  an  engagement  to  pay  the  debt  of 
her  husband,  by  complying  with  the  Louisiana 
statute  enabling  married  women  to  contract  debts. 
But  a  married  woman,  even  though  separate  in 
property,  cannot  be  held  liable  for  a  debt  contracted 

251 


WOMAN  UNDER  THE  LAW 

by  her  husband,  unless  it  be  affirmatively  shown 
that  it  inured  to  her  separate  benefit.  The  husband 
may  labor  upon  the  wife's  statutory  separate  estate 
as  her  agent  or  even  make  improvements  there- 
upon, without,  in  the  absence  of  actual  fraud,  mak- 
ing it  in  any  way  liable  for  his  debts.  In  some  states 
the  wife  cannot  even  charge  her  separate  estate  for 
the  husband's  benefit,  although  in  others  she  may 
do  so.  The  wife's  property  not  being  liable  for  the 
husband's  debts,  it  is  a  fortiori  not  liable  for  his 
torts. 

The  husband  has  no  power  to  make  a  transfer 
of,  or  create  a  charge  upon,  his  wife's  statutory  sepa- 
rate property,  and  if  he  assumes  control  of  it  will  be 
accountable  to  her  for  the  principal,  together  with 
the  income  and  profits.  In  New  York,  the  husband, 
who  is  not  a  tenant  by  the  curtesy  has  no  interest  in 
the  lands  of  his  wife  during  coverture,  and  if  he  re- 
mains in  possession  and  control  after  the  wife's 
death,  he  is  liable  to  the  heirs  of  the  wife  for  rents. 

Where  the  statute  creating  the  separate  estate 
of  a  married  woman  gives  her  power  to  hold,  con- 
vey and  devise  as  fully  as  if  a  feme  sole,  the  hus- 
band's curtesy  w^ill  be  defeated  if  she  makes  such 
conveyance  or  devise;  but  if  she  dies  intestate,  not 
having  conveyed  the  property  it  would  seerr.  that 
the  husband  will  take  for  his  life  as  tenant  by  the 
curtesy,  to  the  exclusion  of  the  heirs  of  the  wife. 
Where  it  is  the  evident  intent  in  making  a  settle- 
ment of  an  estate  upon  a  married  woman  that  she 
shall  hold  it  as  a  feme  sole,  the  husband  cannot  have 
the  curtesy;  and  it  has  been  held  that  the  husband 
could  not  have  curtesy  of  real  estate  conveyed  to 
the  wife  for  her  sole  and  separate  use,  w^ith  power  of 
disposal,  and  who  has  so  disposed  of  it. 


252 


CHAPTER  VIII. 
COMMUNITY  PROPERTY 

All  property  acquired  by  the  husband  or  wife 
during  marriage  is  community  property;  it  includes 
the  profits  of  all  the  effects  of  which  the  husband 
has  the  administration  and  enjoyment,  either  of 
right  or  in  fact,  of  the  produce  of  the  reciprocal  in- 
dustry and  labor  of  both  husband  and  wife,  and  of 
the  estates  which  they  may  acquire  during  the  mar- 
riage, either  by  donations,  made  jointly  w^ith  them 
both,  or  by  purchases,  or  in  any  other  similar  way, 
even  although  the  purchase  be  only  in  the  name  of 
one  of  the  tw^o,  and  not  of  both ;  because  in  that  case 
the  period  of  time  when  the  purchase  is  made  is 
alone  attended  to,  and  not  the  person  w^ho  made  the 
purchase.  The  increase  of  animals  belongs  to  the 
community.  Property  purchased  during  marriage, 
whether  by  the  husband  or  wife,  is  community 
property,  and  not  the  separate  estate  of  the  pur- 
chaser, unless  made  with  separate  funds. 

Conventional  community  is  that  which  is 
formed  by  express  agreement  in  the  contract  of 
marriage.  It  is  immaterial  whether  the  property 
stands  in  the  name  of  both  of  them. 

Legal  community  is  that  which,  in  the  absence 
of  any  agreement,  exists  by  force  of  law^  as  soon  as 
the  marriage  relation  is  established.  Land  pur- 
chased after  the  death  of  the  wife  and  paid  for  with 
community  funds  becomes  community  proF>erty. 
The  surviving  husband  and  children  hold  as  tenants 
in  common. 

253 


WOMAN  UNDER  THE  LAW 

A  crop  growing  at  the  time  of  the  dissolution 
of  the  marriage  is  community  property. 

No  property  acquired  by  the  wife  during  cover- 
ture becomes  her  separate  estate,  except  such  as  is 
derived  by  gift,  devise,  or  descent;  all  acquired  in 
any  other  manner  is  community  property. 

In  California  property  acquired  after  marriage 
becomes  community  property,  unless  it  be  acquired 
by  gift,  descent,  devise,  or  bequest,  or  on  the  credit 
of  the  separate  estate. 

In  Texas  the  increase  of  all  separate  property, 
except  the  increase  of  lands,  is  community  property. 

Property  purchased  during  coverture  by  a  wife 
with  the  rents  and  profits  of  her  separate  estate  are 
not  subject  to  any  marital  rights  of  the  husband. 

In  California  the  increase  and  profits  of  the 
separate  estate  of  husband  and  wife  and  loans  made 
to  the  w^ife  upon  the  faith  of  her  separate  property 
are  separate  property;  but  in  Texas  they  are  com- 
munity property. 

In  Louisiana  the  increase  of  separate  property 
becomes  community  property. 

The  central  idea  of  the  community  system  is 
that  marriage  creates  a  partnership  in  property 
between  husband  and  wife,  and  that  all  property 
resulting  from  the  labor  of  both  or  either  of  them, 
and  all  property  vesting  in  them  or  either  of  them, 
except  by  gift,  devise,  bequest,  or  descent,  inures 
to  the  benefit  of  both  of  them;  and  though  com- 
munity property  has  not  all  the  incidents  of  part- 
nership property,  it  has  many  of  them,  and  is  com- 
monly spoken  of  as  partnership  property. 

The  doctrine  of  community  property  had  its 
origin  in  the  Civil  Law,  but  those  states  and  ter- 
ritories which  have  adopted  it  took  it  directly  from 
the  old  French,  Spanish,  or  Mexican  law.     The  doc- 

254 


COMMUNITY   PROPERTY 

trine  is  at  present  recognized  by  statutes  in  Cali- 
fornia, Louisiana,  Nevada,  Texas,  Arizona,  Idaho, 
Montana  and  Washington.  It  formerly  existed  in 
Missouri.  The  various  statutes  are  to  a  large  extent 
declaratory  of  previously  existing  law,  and  con- 
strued alike  in  several  states.  These  statutes  take 
effect  only  in  the  absence  of  agreement  between  the 
parties,  as  they  may  establish  their  property  rights 
by  contract. 

All  property  acquired  during  the  existence  of 
the  community,  and  all  property  in  the  possession  of 
either  spouse  during  coverture,  is  presumed  to  be 
community  property.  These  presumptions  may  be 
rebutted,  but  it  must  be  by  clear  and  satisfactory 
evidence,  and  the  burden  of  proof  is  upon  the  party 
alleging  that  the  property  is  separate  property. 

In  California  a  purchaser  from  the  husband,  of 
land  deeded  to  the  wife  for  a  valuable  consideration, 
does  so  at  his  peril,  and  it  may  be  shown  that  the 
property  was  the  separate  property  of  the  wife. 

The  husband  and  wife  have  equal  interests  in 
the  community,  though  during  coverture  the  wife's 
rights  are  passive,  and  he  has  full  management  and 
control  of  the  property,  and  may  deal  with  it  almost 
as  if  it  were  his  own.  He  is  its  sole  representative, 
and  is  liable  for  its  debts.  It  is  liable  for  its  separate 
debts.  He  has  full  power  to  dispose  of  it  absolutely 
without  her  consent;  his  sole  deed  passes  com- 
munity realty;  his  sole  signature  assigns  com- 
munity promisory  notes,  though  standing  in  her 
name;  in  his  sole  name  he  sues  in  ejectment,  and 
enforces  a  promisory  note;  he  may  give  the  prop- 
erty away,  but  not  with  the  intent  to  defraud  her  of 
her  rights,  in  view  of  divorce  or  of  death,  though 
her  remedy  in  such  case  seems  confined  to  a  bill 
quia  timet.  He  may  give  or  assign  community 
property  to  his  wife  to  be  her  separate  property 

255 


WOMAN  UNDER  THE  LAW 

where  there  is  no  fraud  on  creditors;  and  the  prop- 
erty and  his  widow  are  bound  by  his  estoppel.  The 
husband  cannot  affect  the  interest  of  the  wife  by 
will,  or  by  any  instrument  to  take  effect  after  his 
death ;  and  after  the  death  of  the  wife  he  cannot  dis- 
pose of  the  community  except  to  pay  the  debts 
thereof  or  to  the  extent  of  his  own  interest.  If 
there  be  community  debts,  the  survivor  of  the  com- 
munity may  appropriate  community  property  to 
their  payment;  and  his  power  to  v^ind  up  commu- 
nity affairs  is  so  far  recognized,  that  sales  fairly 
made  by  him  for  that  purpose  will  not  be  set  aside. 
His  pow^er  to  sell  is  dependent  on  the  existence  of 
some  claim  against  the  community,  and  whosoever 
purchases  from  him  must  see  to  it  that  the  facts 
exist  w^hich  authorize  the  sale. 

Divorce  proceedings  alone  do  not  affect  his 
rights,  though  his  abandonment  of  his  wife  may 
give  her  important  powers. 

When  the  husband  deserts  the  w^ife,  ceases  to 
discharge  his  marital  duties,  and  contributes  nothing 
to  her  support  and  to  the  support  of  the  children, 
the  power  to  manage,  control,  and  dispose  of  the 
community  property  for  purposes  of  support  is 
transferred  to  the  w^ife.  In  such  a  case  the  discre- 
tion exercised  by  the  wife  in  selling  the  community 
property  will  not  be  reviewed,  unless  it  has  been 
used  to  perpetrate  a  fraud  on  the  husband's  right. 
It  may  safely  be  said  that  the  abandonment  of  a  wife 
by  her  husband  perfects  all  her  rights  in  and  to  the 
community  property  as  effectually  as  if  he  were 
dead.  The  sentence  of  a  husband  to  the  peniten- 
tiary, and  his  confinement  there,  is  equivalent  to  an 
abandonment  of  the  wife,  and  authorizes  her  to 
manage  and  dispose  of  the  community  property,  at 
least  so  far  as  to  secure  a  support  for  herself  and 
children. 

256 


COMMUNITY   PROPERTY 

In  case  of  divorce  the  property  is  divided;  a 
mere  cause  for  divorce  does  not  forfeit  the  rights 
of  either  party,  and  after  divorce  the  husband  has 
no  powers  over  the  wife's  interest. 

The  wife's  rights  over  the  community  are  as 
well  defined  and  ascertained  as  those  of  the  hus- 
band; though  once  called  "a  mere  expectancy,"  her 
interest  is  equal  to  that  of  her  husband ;  and  she  may 
protect  herself  by  all  the  remedial  processes  afforded 
to  anyone. 

A  wife,  under  the  liberal  provisions  of  the  con- 
stitution and  laws  of  Texas  for  the  protection  of  her 
separate  property,  may,  in  her  own  name,  maintain 
a  suit  by  attachment  levied  on  community  property 
belonging  to  herself  and  her  husband,  to  secure  pay- 
ment of  a  debt  which  is  her  separate  property  due 
from  the  husband.  While  this  is  true,  such  a  claim, 
sought  to  be  enforced  by  attachment,  should  be 
closely  scrutinized,  to  guard  against  fraud  and  col- 
lusion between  husband  and  wife  to  defeat  creditors. 

During  coverture  she  cannot  dispose  of  the 
community  without  his  consent;  her  mortgage 
thereof  even  as  to  her  interest  is  void  in  California, 
though  if  she  survives  her  husband  it  may  be  en- 
forced against  her.  With  her  husband's  death  her 
rights  spring  into  activity,  and  she  has  all  the  powers 
of  a  feme  sole  over  her  interest ;  so,  under  the  vari- 
ous statutes  she  may,  for  cause,  have  a  separation 
of  property,  a  partition  of  the  community,  or  may 
be  awarded  alimony  out  of  it,  or  may  have  a  divorce 
with  a  division  of  the  property.  So  if  her  husband 
abandons  her  and  refuses  to  support  her,  her  rights 
over  the  community  quicken  into  vigorous  activity; 
she  may  deal  with  it  in  his  place,  and  she  may  even 
in  her  own  name  convey  real  estate  standing  in  his 
name,  so  that  subsequent  bona  fide  purchasers  from 
him  will  get  nothing. 

257 


WOMAN  UNDER  THE  LAW 

The  survivor  has  at  least  one-half  of  the  com- 
munity property  after  all  the  community  debts  aie 
paid,  the  community  property  being  a  primary  fund 
for  the  settlement  of  community  debts.  The  sur- 
vivor may  generally  settle  up  the  community  with 
or  without  statutory  authority,  and  with  or  without 
going  into  court.  The  survivors  or  the  heirs  of  the 
deceased  can  assign  their  respective  interests,  but 
not  by  metes  and  bounds,  as  dissolution  of  the  mar- 
riage turns  the  community  into  tenancy  in  com- 
mon. Either  spouse  may  by  will  dispose  of  such 
part  of  the  community  as  would  go  to  his  or  her 
representatives,  but  neither  can  by  w^ill  affect  the 
interests  of  the  other.  A  married  woman  may  dis- 
pose of  her  property  by  w^ill,  subject  to  the  liability 
of  her  community  property  for  the  payment  of  com- 
munity debts.  In  Louisiana  the  surviving  wife  may 
enjoy  the  use  of  the  community  during  w^idowhood, 
and  the  survivor  has  a  usufruct  of  so  much  of  the 
community  as  may  be  inherited  by  his  or  her  issue 
proceeding  from  the  marriage. 

Upon  the  death  of  either  spouse  the  heirs  of 
the  deceased  take  one-half  of  the  community  prop- 
erty subject  to  the  payment  of  community  debts, 
the  survivor's  homestead  rights,  and  the  survivor's 
right  of  administration.  The  heirs  of  the  wife  be- 
come vested  with  a  title  to  her  share  of  the  com- 
munity property  at  the  moment  of  her  death;  and 
though  they  receive  it  subject  to  the  payment  of  the 
commiunity  debt,  they  are  bound  to  await  a  liquida- 
tion of  the  community  before  resorting  to  an  action 
to  recover  it.  Nor,  in  such  action,  petitory  in  its 
character,  is  the  indebtedness  of  the  community,  or 
its  financial  condition  when  dissolved,  a  legitimate 
subject  of  inquiry.  As  has  been  often  said,  heirs 
take  community  property  charged  with  the  debts 
against  it;  and  if  it  be  sold  by  the  survivor  for  the 

258 


COMMUNITY    PROPERTY 

purpose  of  paying  community  debts,  or  for  the  pur- 
pose of  reimbursing  the  survivor  for  separate  means 
used  in  discharge  of  such  debts,  then  the  purchaser 
will  be  protected  in  his  purchase. 

On  the  death  of  the  wife  her  interest  in  the 
homestead  descends  and  invests  in  her  heirs,  sub- 
ject to  administration  and  to  the  right  of  the  hus- 
band to  wind  up  the  community  affairs.  This  right 
of  the  husband  must  be  limited  chiefly  to  paying 
the  community  debts,  and  a  purchaser  from  him 
does  not  acquire  the  interest  of  the  children  of  the 
marriage  when  there  were  no  debts  of  the  commu- 
nity to  be  paid.  A  sale  to  support  the  children  will 
not  be  sufficient  to  pass  title  to  their  interest  in  the 
homestead. 

In  Louisiana  a  child  cannot,  since  the  passage 
of  the  laws  of  1884,  sue  for  her  deceased  father's 
community  interest  while  her  mother  remains  a 
widow. 

Where  a  wife  dies  seised  of  community  estate, 
and  leaving  children,  her  interest  in  such  commu- 
nity estate  descends  to  and  vests  wholly  in  her  sur- 
viving children,  to  the  exclusion  of  surviving  grand- 
children whose  parents  died  before  the  ancestress 
did. 

Upon  the  death  of  either  spouse  the  heirs  may 
apply  to  the  court  to  restrain  the  survivor  from 
w^asting  or  improperly  disposing  of  the  property, 
after  the  surviving  husband  has  regularly  filed  his 
inventory.  If  it  appears  that  he  is  about  to  waste 
the  property,  the  heirs  may  apply  to  the  court  and 
have  their  rights  protected. 

In  Louisiana  the  heirs  may  accept  or  renounce 
the  succession.  The  heirs  also  have  a  claim  for  any 
separate  property  of  the  deceased  which  has  been 
taken  into  the  community  or  by  the  survivor. 

The  community  property  is  liable  for  the  wife's 

259 


WOMAN  UNDER  THE  LAW 

ante-nuptial  debts,  but  not  on  any  contract  of  hers 
made  during  coverture,  except  for  necessaries.  The 
community  property  is  liable  for  the  sole  debt  of 
the  wife  contracted  before  marriage ;  and  it  has  been 
held  that  interest  paid  on  a  stock  loan  which  was  a 
personal  debt  of  the  wife  was  chargeable  to  the  com- 
munity. The  property  is  likewise  liable  for  all  ante- 
nuptial and  post-nuptial  debts  of  the  husband ;  as  he 
can  dispose  of  it  absolutely,  he  can  absolutely 
charge  it  with  his  debts. 

As  an  entirety,  it  is  not  liable  for  any  debt  con- 
tracted after  dissolution  of  the  marriage.  All  the 
debts  for  which  it  is  liable  must  be  settled  before  the 
survivor  or  the  heirs  of  the  deceased  have  person- 
ally any  interest. 

In  Louisiana  if  the  widow^  accept  the  commu- 
nity, she  or  her  estate  is  liable  for  one-half  of  the 
debts,  but  if  she  renounce  the  same,  neither  she 
nor  her  estate  can  be  held  liable  at  all.  A  judgment 
against  both  husband  and  wife  can  be  enforced 
against  the  community  property  or  against  the  sepa- 
rate property  of  either  one;  but  if  a  mortgage  has 
been  given  for  the  husband's  debts,  w^hich  covers 
both  community  property  and  separate  property  of 
the  wife,  she  may  have  the  community  property  ex- 
hausted first. 

Where  a  judgment  is  recovered  against  hus- 
band and  wife  jointly  without  any  specific  direc- 
tions in  the  decree  as  to  the  estate  out  of  which  it  is 
to  be  satisfied,  it  w^ould  seem  that,  as  a  general  rule, 
it  may  be  levied  upon  and  be  satisfied  out  of  the 
property  of  either  the  husband  or  wife  or  of  the 
community. 

Judgment  creditors  cannot  have  a  part  of  the 
community  property  set  aside  by  metes  and  bounds 
to  satisfy  their  debts. 

260 


COMMUNITY   PROPERTY 

If  by  the  terms  of  a  trust  deed  the  separate 
property  of  a  wife  be  liable,  all  community  property 
which  is  subject  to  the  Scime  lien  must  be  exhausted 
before  the  separate  property  of  the  wife  can  be 
taken. 

In  a  foreclosure  suit  against  the  community 
the  wife  should  be  made  a  party. 


261 


CHAPTER  IX. 

DOWER 

Dower  at  common  law  is  the  life  estate  of  a 
wife  in  one-third  of  all  the  legal  estates  of  inherit- 
ance of  which  her  husband  is  seised  at  any  time 
during  coverture,  and  which  any  issue  of  theirs 
might  directly  inherit.     It  has  three  stages,  namely : 

( 1 )  its  inchoate  stage,  extending  from  the  time 
of  the  marriage,  or  the  acquisition  of  the  property 
in  question,  to  the  time  of  the  husband's  death; 

(2)  its  consummate  stage,  extending  from  the 
death  of  the  husband;  and  (3)  its  assigned  stage, 
extending  from  the  time  it  is  set  off  to  the  widow^. 

The  word  "dower"  both  technically  and  in 
popular  acceptation,  has  reference  to  real  estate  ex- 
clusively. At  first  dower  is  said  to  have  consisted 
of  personalty;  but  at  a  later  period,  not  distinctly 
ascertained,  it  became  solely  an  interest  in  lands. 
The  portion  of  land  allotted  as  dower  likewise 
varied  at  different  times,  consisting  of  one-fourth, 
one-tenth,  and  one-half,  before  it  became  settled  at 
one-third  for  life.  This  was  due  to  English  statutes, 
which,  as  a  part  of  the  common  law,  were  generally 
adopted  in  the  United  States. 

fThe  custom  of  conferring  upon  a  widow  for 
life  a  portion  of  her  husband's  property,  or  allowing 
her  dower,  is  universally  conceded  to  be  of  great 
antiquity; — so  ancient,  that  neither  Coke  nor 
Blackstone  could  trace  it  to  its  source.  It  is  said  on 
the  one  hand  to  be  of  German  origin,  while  on  the 

262 


DOWER 

other  hand  its  introduction  is  ascribed  to  the  Nott-. 
mans  as  a  part  of  their  local  tenure. 

The  provision  of  the  common  law  entitling  the 
wife  to  dower  in  her  husband's  lands  was  intended 
for  the  sure  and  competent  sustenance  of  the 
widow,  and  the  better  nurture  and  education  of  her 
children.  Courts  have  always  highly  favored  the 
widow's  claim  for  dower.  It  is  a  legal,  equitable 
and  moral  right,  and  next  to  life  and  liberty  held 
sacred. 

In  order  that  the  wife's  right  to  dower  may  be 
consummate,  vested  and  absolute,  the  husband's 
death  must  occur  before  hers,  and  it  must  be  natural 
death;  civil  death  will  not  give  dower,  nor  is  an 
absolute  divorce  the  equivalent  of  death  in  this  con- 
nection. No  dower  rights  can  attach  to  property 
before  the  husband  is  seised  thereof;  a  mere  right 
of  entry  into  land  held  by  another  under  claim  of 
title  was  not  enough.  Wrongful  seisin  is  generally 
sufficient  to  give  the  wife  dower  as  against  her  hus- 
band's heirs  and  assigns.  The  husband's  seisin 
must  be  beneficial,  and  he  must  be  seised  for  his 
pw^n  use.  To  illustrate: — A  wife  has  no  dower  in 
lands  held  by  her  husband  as  administrator  or  trus- 
tee; but  if  the  seisin  be  beneficial,  it  matters  not  how 
short  a  time  it  lasts.  Still,  if  in  one  transaction, 
though  by  diflFerent  deeds,  the  title  passes  in  and  out 
of  the  husband,  as  when  property  is  purchased  and  a 
mortgage  given  for  the  purchase  money,  the  seisin 
is  merely  transitory,  and  no  right  to  dower  attaches. 
The  seisin  must  be  sole  and  not  joint;  there  is  no 
dower  in  joint  estates,  though  there  is  in  estates  in 
common  and  in  coparcenary,  but  if  the  joint  estate 
is  destroyed  by  any  other  means  than  the  husband's 
assignment,  dower  attaches. 

The  seisin  must  be  the  immediate  seisin  of  the 
inheritance. 

263 


WOMAN  UNDER  THE  LAW 

The  seisin  must  exist  at  some  time  during 
coverture,  but  it  need  not,  except  by  statute,  exist 
at  the  husband's  death.  If  the  husband  gives  a  bond 
of  conveyance  before  marriage  and  convey  in  ac- 
cordance therewith  after  the  marriage,  the  second 
conveyance  dates  back  to  the  time  of  the  bond  anH^ 
there  is  no  dower. 

Dower  attaches  to  all  hereditaments,  corporeal 
or  incorporeal,  w^hich  savor  of  the  realty.  It  at- 
taches therefore  to  mines  already  opened,  whether 
they  have  been  abandoned,  closed  or  not;  but  the 
widow^  cannot  open  mines.  She  may  have  dower 
in  wild  lands ;  in  land  covered  with  w^ater ;  but  there 
is  no  dow^er  in  shares  of  stock  in  corporations,  gen- 
erally; and  none  in  annuities  not  charges  on  land, 
and  none  in  grass,  fruits,  and  spontaneous  produc- 
tions of  the  soil  grow^ing  at  the  husband's  death. 
By  statute  there  was  dower  in  slaves. 

-AbsoliLtfi—Xeetsimple-  estates  are  subject  to 
dow^er.  Estates  in  remainder  or  reversion  expectant 
on  a  freehold  are  not  subject  to  dower,  but  those 
expectant  on  a  leasehold  are.  Estates  in  common, 
and  in  coparcenary  are  subject  to  dower,  but  joint 
estates  are  not.  There  is  no  dow^er  in  bare  legal 
estates,  or  in  equitable  estates  at  common  law,  or  in 
partnership  estates  or  in  estates  for  years,  or  in 
estates  at  w^ill,  or  in  estates  of  preemption. 

At  common  law  dower  attached  only  to  legal 
estates;  the  husband,  as  has  been  seen,  had  to  be 
seised  of  the  legal  title.  All  kinds  of  uses  and  trusts 
were,  therefore,  exempt  from  dower,  such  as  trusts 
created  by  deed  or  w^ill,  equities  of  redemption,  and 
lands  paid  for  but  not  formally  deeded.  The  com- 
mon law^  rule  still  prevails  in  Connecticut,  Dela- 
ware, Florida,  Georgia,  Maine,  Massachusetts, 
Michigan,  New  Hampshire,  Oregon,  South  Carolina, 
Vermont  and  Wisconsin.    In  Pennsylvania  this  rule 

264 


DOWER 

has  never  existed.  It  has  been  abolished  by  implica- 
tion in  Arkansas,  and  expressly  in  England,  Ala- 
bama, Illinois,  Kentucky,  Maryland,  Missouri,  New 
Jersey,  New  York,  North  Carolina,  Ohio,  Rhode 
Island,  Tennessee,  Virginia  and  West  Virginia. 

Statutes  giving  dower  in  equitable  estates  are 
remedial,  and  are  applied  to  estates  owned  by  the 
husband  before  the  passage  of  the  statute,  if  the 
rights  of  third  persons  have  not  intervened.  In 
Massachusetts  dower  is  given  in  equities  of  redemp- 
tion, and  in  property  in  which  the  husband  has  a 
complete  equitable  title. 

Equitable  estates  must  be  distinguished  from 
equitable  rights,  for  even  under  the  above  statutes, 
there  is  no  dower  in  a  mere  right.  Therefore,  to 
entitle  the  v/ife  to  dower,  the  husband's  equity  must 
be  perfect  and  complete, — an  interest  which  would 
pass  to  his  heirs,  and  not  a  mere  right  of  action 
which  would  pass  to  his  personal  representatives. 
Thus,  there  is  dower  in  land  which  a  husband  has 
bought  and  paid  for,  but  the  deed  to  w^hich  he  has 
lost  before  recording  it.  And  it  must  be  such  an 
equitable  title  that  equity  would  decree  the  legal 
title,  other  rights  not  conflicting,  and  not  a  mere 
moral  right  depending  upon  an  unenforceable  con- 
tract or  trust.  The  question  has  repeatedly  arisen 
in  cases  where  the  husband  had  not  completed  a 
purchase  at  the  time  of  his  death,  but  had  paid  a 
part  or  the  whole  of  the  purchase  money;  and  in 
such  cases  the  wife's  right  to  dower  depends  very 
much  upon  the  terms  of  the  contract.  To  illustrate : 
When  the  husband  has  paid  all  the  purchase  money 
and  is  entitled  to  a  deed,  and  could  in  equity  obtain 
a  decree  of  specific  performance,  the  wife  is  entitled 
to  dow^er;  and  when  none  of  the  purchase  money 
has  been  paid  she  has  no  dower.  But  there  is  con- 
siderable dispute  as  to  the  effect  of  a  part-payment 

265 


WOMAN  UNDER  THE  LAW 

of  purchase  money.  Some  cases  hold  that  all  the 
purchase  money  must  be  paid.  The  true  rule  seems 
to  be  that  if  the  terms  of  the  contract  give  the  hus- 
band the  right  to  the  property  only  after  the  pay- 
ment of  all  the  purchase  money,  his  wife  can  have 
no  dower  unless  all  the  purchase  money  is  paid ;  but 
when  he  has  taken  possession  of  the  property  after 
a  part  payment,  and  the  vendor  has  retained  the  title 
only  as  security,  or  has  relied  on  his  lien  for  the  pur- 
chase money,  the  wife  has  dower  subject  to  the 
vendor's  rights. 

Dower  in  equitable  estates  differs  from  dower 
in  legal  estates,  generally,  in  that  the  husband  must 
die  seised  of  the  former  to  entitle  his  wife  to  dower. 
This  seems  to  be  the  general  rule  under  the  statutes. 
If  he  has  aliened  an  equitable  estate,  his  wife  not 
consenting  to  the  deed,  absolutely  or  by  mortgage  or 
other  incumbrance,  he  has  defeated  dow^er  abso- 
lutely or,  pro  tanto.  And  a  legal  title  acquired  by 
the  husband  after  he  has  so  disposed  of,  or  incum- 
bered the  equitable  estate  inures  to  the  benefit  of  the 
assignee,  and  does  not  perfect  dow^er. 

It  has  been  a  much  vexed  question  whether 
and  to  what  extent  dower  exists  in  partnership  real 
estate.  Some  cases  hold  that  partnership  real  estate 
is  personalty,  and  that  there  is,  therefore,  no  dower 
therein  at  all;  others  hold  that  real  estate  is  real 
estate  though  owned  by  a  partnership,  and  is  there- 
fore fully  subject  to  dower.  But  the  true  rule  seems 
to  be  that  realty  bought  w^ith  partnership  funds  or 
for  partnership  purposes  is  realty  at  law  subject 
to  dow^er,  just  as  if  the  partners  were  tenants  in 
common,  unless  the  terms  of  the  partnership  agree- 
ment declare  it  to  be  personalty;  but  that  in  equity 
it  is  subject  to  a  trust  in  favor  of  the  partnership 
creditors  and  of  any  of  the  partners  with  a  balance 
due  him,  this  trust  being  paramount  to  any  dower 

256 


DOWER 

claims,  and  there  being  no  dower  if  the  property  ia 
needed  to  pay  the  firm  creditors,  or  to  pay  any  part- 
ner a  balance  due  him;  but  there  being  dower,  if 
the  property  is  not  needed  for  such  purposes,  or  in 
the  surplus,  if  it  be  so  needed,  only  in  part;  pro- 
vided, however,  that  if  the  property  is  sold  under 
the  partnership  equitable  lien  during  coverture,  as 
in  the  case  of  the  enforcement  of  other  paramount 
liens,  dower  is  defeated;  and  that  the  wives  of  the 
partners  do  not  have  to  join  in  any  deed  of  the 
partnership  property,  or  be  made  parties  to  any  suit 
when  the  partnership  property  is  foreclosed  or 
otherwise  attacked  by  the  partnership  creditors.  If 
there  is  an  express  agreement  that  the  realty  of  the 
partnership  shall  be  used  for  paying  the  debts  of 
the  firm,  the  property  is  undoubtedly  subject  to  the 
trust  above  described.  It  is  well  settled  that  such  an 
agreement  is  always  implied,  so  that  the  property 
vests  in  the  partners  subject  to  an  equitable  lien, 
which  is,  therefore,  prior  to  dower.  If  the  lands  are 
sold  under  the  partnership  lien,  the  widow  has  no 
dower  in  rents  and  profits  accruing  before  the  sale. 
The  realty  must,  of  course,  be  partnership  property 
or  it  w^ill  be  subject  to  dower  as  any  other  realty.  If 
bought  by  the  partners,  it  is  prima  facie  partnership 
property;  it  is  such  property  if  bought  w^ith  part- 
nership funds,  or  for  the  use  of  the  firm;  but  it  is 
not,  if  bought  for  and  charged  to  one  partner,  or, 
if  taken  in  common  by  express  agreement. 

Where  land,  which  would  in  ordinary  circum- 
stances be  subject  to  dower,  has  been  mortgaged,  a 
mortgagee's  interest  is  personalty,  and  his  wife  can 
have  no  dower  in  the  property,  unless  he  has  per- 
fected his  title  thereto  by  foreclosure  during  his  life. 
The  mortgagor's  interest,  on  the  other  hand,  until 
default  or  foreclosure,  is,  generally,  under  the  terms 
of  the  usual  mortgage,  a  legal  estate  on  condition, 

267 


WOMAN  UNDER  THE  LAW 

and  his  wife  takes  dower  subject  to  defeasance  by 
breach  of  condition.  After  default  the  mortgagor 
has,  generally,  only  an  equitable  title  or  estate  called 
an  equity  of  redemption,  and  at  common  law  there 
w^as  no  dower  in  equities  of  redemption  or  in  any 
other  equitable  estates;  but  now,  as  has  been  seen, 
equities  of  redemption  are  subject  to  dower.  This 
applies,  of  course,  to  only  such  mortgages  as  are 
paramount  to  dow^er;  that  is,  w^hether  the  land  was 
bought  subject  to  the  mortgage,  or  the  mortgage 
was  made  by  the  husband  before  marriage  or  after 
marriage  without  her  joinder,  as  a  part  of  the  trans- 
action that  vested  the  property  in  him.  If  the 
mortgage  is  made  after  marriage  without  the  w^ife's 
joinder  to  release  her  dower,  she  has  her  dower  as 
if  the  mortgage  had  not  been  made,  as  she  w^ould  if 
the  property  had  been  conveyed  absolutely  and  not 
by  way  of  mortgage. 

Where  the  wife  has  her  dower  in  mortgaged 
land  subject  to  defeasance  by  breach  of  condition, 
or  has  dow^er  in  the  equity  of  redemption,  and  her 
husband  dies  w^ithout  default  and  foreclosure,  she 
may  be  endowed  out  of  the  lands  and  hold  them 
until  default  and  foreclosure.  But  if  there  has  been 
default  and  the  mortgagee  has  taken  possession  the 
widow  cannot  disturb  him  and  have  dower,  but  she 
has  certain  rights  in  case  of  redemption  or  a  fore- 
closure sale. 

Where  the  husband  dies  seised  of  the  equity  of 
redemption  and  the  mortgage  is  in  default,  the 
widow^  may  require  his  personal  representatives  to 
redeem  out  of  the  assets  of  the  estate,  and  she  need 
not  contribute;  if  there  are  not  enough  assets  to 
pay  the  whole  debt  the  personal  representatives 
must  pay  as  much  as  they  can,  and  save  the  widow's 
do"wer  as  far  as  possible. 

If  the  husband  during  his  life  has  assigned  the 
268 


DOWER 

equity  of  redemption,  there  are  no  decisions  to  the 
effect  that  the  widow  can  require  the  assignee  to 
redeem;  still,  if  the  assignee  does  redeem  and  the 
widow  contributes  her  proportion,  she  has  her 
dower.  But  if  the  assignee  redeems  during  the  hus- 
band's life,  the  widow  has  her  dower  without  any 
contribution.  The  widow's  share  for  contribution 
is  the  interest  on  one-third  the  amount  paid  for 
redemption  during  her  life  or  the  equivalent  thereof. 

The  widow  may  herself  redeem,  but  she  must 
pay  the  whole  debt,  unless  the  mortgagee  will  accept 
a  contribution  and  release  her  dower  interest;  this 
is  important  because  if  she  does  pay  the  whole  it  is 
doubtful  whether  she  can  require  contributions 
from  those  holding  under  her  husband. 

If  the  mortgagee  buys  in  the  equity  of  redemp- 
tion, or  if  the  holder  of  the  equity  buys  in  the  mort- 
gage, though  a  merger  is  thereby  created,  as  far  as 
the  widow  and  dower  are  concerned  it  is  treated  as 
a  redemption. 

If  the  husband,  or  anyone  for  him,  pays  off 
the  mortgage,  there  is  dower  as  if  no  mortgage  ever 
existed. 

If  the  mortgage  is  foreclosed  during  coverture 
the  land  is  turned  into  personalty  under  a  lien  para- 
mount to  dower,  and  dow^er  is  gone.  But  some 
courts  have  held  that,  on  account  of  her  inchoate 
right,  the  wife  must  be  a  party  to  the  foreclosure 
suit,  and  that  if  there  is  a  surplus,  dow^er  therein 
w^ill  be  set  aside  and  kept  for  her.  If  the  mortgage 
has  been  foreclosed  after  the  husband's  death,  or 
the  fund  has  not  been  distributed  at  the  time,  the 
widow  has  dow^er  in  the  surplus,  and  if  there  is  no 
surplus,  dower  is  gone.  Foreclosure  destroys  all 
the  widow^'s  rights  in  the  property  mortgaged,  but 
the  vsndow  should  be  made  a  party  to  the  suit. 

As  a  general  rule,  every  kind  of  lien  for  the 

269 


WOMAN  UNDER  THE  LAW 

purchase  money  of  land  is  superior  to  a  wife's  right 
of  dower  therein.  If  a  vendor  retains  the  legal  title 
to  the  land  as  security,  this  is  superior  to  dower; 
and  so  is  his  equitable  lien  superior,  in  places  where 
such  liens  are  recognized,  though  he  has  parted  with 
the  legal  title;  unless  the  vendor  has  taken  other 
security,  in  which  case  the  vendor's  lien  is,  in  the 
absence  of  express  agreement,  gone.  So  that,  even 
if  he  obtains  judgment  against  the  purchaser  for 
the  purchase  money,  he  thereby  loses  his  equitable 
lien,  and  the  judgment  is  secondary  to  the  dower. 

If  the  vendor  takes  a  mortgage  for  the  pur- 
chase money,  it  is  almost  universally  admitted  that 
such  mortgage  is  superior  to  dower,  though  not 
signed  by  the  wife.  And  if  a  third  party  lends  a 
purchaser  the  purchase  money  and  takes  a  mort- 
gage therefor,  he  has  the  same  right  superior  to 
dower  that  the  vendor  himself  w^ould  have  had  if  the 
mortgage  had  been  taken  by  the  vendor.  It  is  essen- 
tial that  the  payment  of  the  purchase  money  and 
the  giving  of  the  mortgage  should  be  part  of  one 
and  the  same  transaction. 

Whether  the  vendor  reserves  his  lien  or  takes 
a  mortgage,  very  nearly  the  same  rights  result,  and 
the  rules  applicable  to  dower  in  mortgage  property, 
the  mortgage  being  superior  to  dower,  apply.  Thus, 
the  wife  has  dow^er  against  all  persons,  except  the 
mortgagor  or  vendor,  or  assigns.  She  may  have 
dower  till  the  claim  of  such  parties  is  asserted.  If 
the  lien  is  discharged  by  payment,  she  has  dower 
in  the  land.  After  her  husband's  death  she  may 
call  upon  his  personal  representatives  to  satisfy  the 
lien,  or  have  the  other  realty  exhausted  for  this  pur- 
pose. If  the  lien  is  enforced  during  her  husband's 
life,  her  dower  is  gone;  if  after  his  death,  she  has 
dower  in  the  surplus.  In  any  case  the  purchaser 
takes  the  land  free  of  dow^er.     The  vendor's  lien  is 

270 


DOWER 

on  the  land,  not  on  the  rents  and  profits.  The  hus- 
band may  reconvey  the  land  to  the  vendor  in  satis- 
faction of  the  lien,  provided  that  this  is  not  done  to 
defeat  the  wife's  rights. 

Dower  is  a  mere  inchoate  right  from  the  time 
of  the  marriage,  or  of  the  vesting  of  the  property  if 
the  property  were  acquired  after  the  marriage,  until 
the  death  of  the  husband  at  common  law;  or  under 
statutes,  until  the  time  of  divorce,  the  husband's 
bankruptcy,  etc.  It  is  a  wife's  right  to  such  part  of 
her  husband's  lands  as  the  law  at  the  time  of  his 
death,  or  of  the  alienation,  if  he  has  aliened  it,  may 
allow  her.  It  is  not  a  vested  right,  and  the  legisla- 
ture may  change  it ;  it  is  a  contingent  right,  and  does 
not  rise  to  the  dignity  of  an  estate. 

But  inchoate  dower  is  a  valuable  right,  and  has 
many  of  the  incidents  of  property.  Though  some 
cases  say  it  has  no  present  value,  others  say  that  its 
present  value  can  be  computed;  it  is  a  valuable 
consideration  for  a  conveyance  to  a  w^ife,  and  she 
may  maintain  an  action  for  its  protection,  or  file  a 
bill  for  the  redemption  of  a  mortgage  covering  it; 
and  in  some  states,  she  must  be  a  party  to  any  suit 
affecting  it.  Still  it  cannot  be  bargained  and  sold, 
but  only  released  to  the  tenant;  nor  can  it  be  taken 
in  execution;  nor  can  the  statute  of  limitations 
apply  to  it. 

Though  it  has  at  times  been  questioned 
whether  inchoate  dower  is  an  incumbrance,  that  it 
is,  is  now^  settled ;  it  comes  within  a  covenant  against 
incumbrances,  and  is  such  an  incumbrance  as  would 
justify  a  vendee  in  refusing  to  carry  out  his  con- 
tract. 

At  common  law,  on  the  husband's  death  and 
under  statutes,  on  divorce,  the  husband's  bank- 
ruptcy, etc.,  dower  is  consummate.  It  is  not  an  es- 
tate, but  a  mere  right  of  action  growing  out  of  land, 

271 


WOMAN  UNDER  THE  LAW 

— the  right  to  have  dower  assigned.  The  widow  is 
not  seised  of  the  land  in  which  she  has  such  right; 
she  cannot  hold  possession  of  such  property,  except 
by  the  law  of  quarantine.  She  has  no  right  of  entry 
as  against  the  tenant;  she  cannot  maintain  eject- 
ment, sue  for  trespass  or  proceed  for  partition;  she 
cannot  oppose  the  entry  by  the  husband's  heirs, 
and  in  many  states  she  need  not  be  made  a  party 
to  a  proceeding  against  the  land.  She  cannot  bar- 
gain and  sell  it  at  law^ ;  nor  can  it  be  seized  in  execu- 
tion by  her  creditors;  but  she  can  transfer  it  in 
equity,  and  in  equity  it  can  be  charged  with  her 
debts.  She  cannot  mortgage  or  lease  it,  but  she 
can  release  it  to  the  tenant ;  and  being  sui  juris,  she 
can  accept  an  aw^ard  in  its  place.  It  is,  however,  an 
encumbrance,  and  an  adverse  claim  against  the 
land. 

After  assignment  of  dow^er  and  entry  by  the 
widow,  she  is  seised  of  a  freehold  for  her  life,  and 
her  estate  has  generally  the  incidents  of  a  conven- 
tional life  estate.  She  may  alien  her  estate,  and  it 
is  liable  for  her  debts ;  she  may  lease  it,  and  the  back 
rent  belongs  to  her  representatives  in  case  of  her 
death.  She  must  pay  the  taxes  and  charges  upon 
the  property  assigned  to  her  for  dower;  she  is  en- 
titled to  reasonable  estovers;  she  has  a  right  to  all 
crops  growing  on  the  property  at  the  time  of  the 
assignment;  her  representatives  are  entitled  after 
her  death  to  all  crops  sown  by  her ;  on  her  death  the 
estate  ceases,  and  her  representatives  cannot  claim 
betterments  put  on  the  property  by  her.  She  takes 
the  property  subject  to  all  liens  paramount  to 
dow^er,  but  free  from  all  others  Her  possession  is 
not  adverse  to  the  reversioner.  In  various  ways  she 
may  forfeit  her  estate,  as  by  w^aste,  in  Delaware, 
Illinois,  Kentucky,  Maine,  Minnesota,  Missouri, 
New  Jersey,  New  York,  North  Carolina,  Ohio,  and 

272 


DOWER 

Rhode  Island;  but  the  strict  common  law  rule  as 
to  waste  is  not  enforced  in  the  United  States,  and 
the  widow^  may  make  any  reasonable  use  of  the 
dower  estate. 

As  has  already  been  seen,  even  inchoate  dower 
is  an  encumbrance  or  lien  on  the  property  subject 
thereto.  As  a  lien  or  incumbrance  it  is  inferior  to 
all  liens  attaching  prior  to  the  marriage  or  to  the 
acquisition  of  the  property  by  the  husband,  and  to 
all  other  liens  attaching  with  the  legally  given  con- 
sent of  the  w^ife;  but  it  is  superior  to  all  liens  at- 
taching during  coverture  w^ithout  such  consent ;  ex- 
cept where  statutes  give  the  husband  power  to 
destroy  dower  by  his  sole  act.  As  a  general  rule, 
if  the  property  is  sold  under  a  superior  lien  during 
coverture,  the  realty  is  converted  into  personalty, 
and  dower  is  lost;  but  if  sold  after  the  husband's 
death,  dower  is  awarded  out  of  the  surplus.  If  a 
superior  lien  is  satisfied,  dower  exists  as  if  such 
superior  lien  never  had  been.  Any  sale  under  an 
inferior  lien  must  be  subject  to  dower. 

A  widow  may  have  no  right  to  dower  either 
because  the  right  never  attached,  or  because  after 
attaching  it  was  destroyed ;  the  right  may  be  barred 
or  defeated;  a  general  glance  over  the  various 
modes  of  barring  and  defeating  dower,  and  a  sepa- 
rate discussion  of  each  w^ill  be  helpful.  Though  it 
is  extremely  difficult  to  lay  dow^n  any  general  rule 
which  might  not  mislead,  the  following  statement 
is  substantially  correct:  The  husband  may  avoid 
the  inconvenience  of  dower  by  taking  such  a  title 
in  himself  that  the  requisites  of  dow^er  will  not  exist, 
or  by  changing  his  tenure  before  marriage  for  the 
same  purpose;  but  this  must  not  be  done  secretly, 
or  it  will  be  a  fraud  on  the  wife ;  so  he  may  prevent 
dower  by  making  a  settlement  before  marriage,  in 
accordance  with  the  Statute  of  Uses  or  similar  acts, 

273 


WOMAN  UNDER  THE  LAW 

by  legal  jointure.  After  marriage  and  acquisition 
of  his  property,  he  can,  in  most  states,  do  nothing 
to  relieve  it  of  dower  without  his  wife's  consent; 
but  he  can  make  a  provision  for  her  by  deed  or  will 
in  lieu  of  dower, — an  equitable  jointure, — ^by  the 
acceptance  of  which  after  his  death  she  will  be  bar- 
red of  dower.  The  wife  may  prevent  dower  by 
covenanting  before  marriage  never  to  claim  it.  Dur- 
ing coverture  she  may  release  it  by  complying  with 
the  statute ;  and  after  her  husband's  death  she  may 
bar  herself  by  any  agreement  she  may  make,  or  by 
accepting  any  provision  in  its  stead,  or  by  any  con- 
duct which  would  make  it  inequitable  to  claim  it,  or 
by  her  laches  or  delay.  So  dower  may  be  defeated 
by  operation  of  law,  as  when  the  husband's  estate 
terminates  or  is  converted  into  personalty  by  legal 
proceedings  during  coverture,  or  when  the  realty  is 
taken  during  coverture,  by  right  of  eminent  domain, 
or  when  the  husband  and  wife  are  absolutely 
divorced. 

By  the  common  law,  no  provision  or  settle- 
ment made  by  a  man  before  his  marriage  in  favor 
of  his  future  wife  could  bar  dower,  but  the  Statute 
of  Uses  gave  this  effect  to  a  specified  kind  of  settle- 
ment called  a  legal  jointure.  This  statute  was 
adopted  in  the  United  States  as  a  part  of  the  com- 
mon law.  Nor  at  common  law  could  a  woman  be 
bound  by  any  ante-nuptial  agreement  not  to  claim 
dower.  And  even  now^,  except  under  the  express 
provisions  of  some  statute,  no  settlement  or  agree- 
ment between  husband  and  wife  is  at  law  a  bar  to 
dower. 

But  in  equity  any  provision  in  lieu  of  dower 
accepted  by  the  widow  is  an  equitable  jointure  and 
bars  dower,  and  ante  nuptial  covenants  of  a  woman 
not  to  claim  dower  have  always  been   enforced. 

274 


DOWER 

Legal  and  equitable  jointures  are  discussed  further 
on  in  this  chapter. 

At  common  law  any  agreement  between  hus- 
band and  wife  was  void  and  a  married  woman  had 
no  power  to  contract  even  in  equity,  except  as  to  her 
equitable  separate  property;  later,  statutes  gave  a 
married  woman,  in  some  states,  the  capacity  to  con- 
tract as  to  her  statutory  separate  property.  But 
dower  is  a  common  law  estate  of  a  wife,  and  is  not 
either  equitable  or  statutory  separate  property ;  and 
the  only  way  in  which  a  wife  can  during  coverture 
bar  or  defeat  her  dower  is  by  complying  strictly 
with  statutes  relating  to  the  release  of  dower,  dis- 
cussed later,  or  by  acting  under  the  full  capacity  to 
contract  accorded  women  by  the  statutes  of  a  few 
states. 

When  the  question  arises  as  to  the  validity  of 
a  release  to  the  husband  under  one  of  these  statutes, 
which  authorizes  releases  generally,  it  must  be  re- 
membered that  in  dealing  with  her  husband  a  wife 
is  said  to  be  under  a  double  incapacity  that  of  wife 
and  that  of  married  woman,  and  that  it  is  fairly 
settled  that,  under  a  statute  authorizing  a  married 
w^oman  to  contract  generally,  she  cannot  contract 
with  her  husband.  Accordingly,  it  has  been  held 
that  a  release  of  dower  under  a  statute  directly  to 
the  husband  is  void.  Even  when  the  wife  is  author- 
ized to  contract,  any  agreement  between  them  has 
been  held  to  be  void. 

But,  granting  the  capacity  of  a  husband  and 
wife  to  contract  together,  there  is  nothing  in  the 
nature  of  dower  to  prevent  the  enforcing  in  equity 
of  an  agreement  of  a  w^ife  otherwise  valid  not  to 
claim  dower. 

And  any  provision  made  by  a  husband  for  his 
wife  during  coverture  in  lieu  of  dower  puts  her  to  an 
election  to  take  it  or  dower.     If,  after  the  husband's 

275 


WOMAN  UNDER  THE  LAW 

death,  she  accepts  such  a  provision,  she  bars  herself 
of  dower ;  but  if  she  has  received  the  provision  dur- 
ing his  life  and  has  spent  or  wasted  it,  she  may  take 
dower  as  if  it  had  not  been  made ;  it  is  necessary  in 
order  to  estop  her  that  she  should  have  enjoyed  the 
provision,  in  part  at  least,  after  her  husband's  death. 
This  question  sometimes  arises  in  cases  of  deeds  of 
separation. 

Any  incumbrance  placed  upon  a  husband's 
property  before  his  marriage  may  defeat  dower  to 
that  extent  and  a  husband  may  prevent  dower  from 
attaching  by  alienating  his  property,  or  by  chang- 
ing property  which  would  be  subject  to  dower  into 
property  which  is  not.  The  wife  is  barred,  though 
the  conveyance  is  not  executed  or  recorded  at  the 
time  of  the  marriage,  though  it  is  fraudulent  as  to 
creditors,  if  not  set  aside  during  coverture.  The  hus- 
band's simple  agreement  to  convey  is  likewise  par- 
amount to  dower.  But  a  deed  made  or  a  judgment 
confessed  on  the  day  of  the  marriage  is,  unless 
proved  to  have  been  made  or  entered  before  the 
marriage,  inferior  to  dower. 

But  a  secret  disposition  of  property  by  the 
husband  or  change  in  its  form  would  be  a  fraud  on 
the  wife,  and  w^ould  not  affect  her  dower;  and  so 
w^hen  dispositions  during  marriage  defeat  dower,  a 
conveyance  for  this  purpose  alone  would  be  a  fraud 
of  the  husband  on  his  wife  and  have  no  effect  as  to 
her. 

As  a  general  rule,  how^ever,  no  act  of  a  hus- 
band during  coverture,  without  the  concurrence  of 
the  wife,  can  defeat  dow^er.  This  was  the  rule  at 
common  law,  and  is  still  the  rule  in  most  of  the 
United  States.  But  now^  in  England  and  in  some 
states  a  husband  may  alone  convey  aw^ay  his  prop- 
erty without  his  wife's  joinder  in  the  deed,  and  thus 
defeat  dow^er.     Such  statutes  apply  only  to  deeds 

276 


DOWER 

of  a  husband  made  after  their  passage ;  and  a  statute 
enabling  a  husband  to  defeat  dower  by  conveyance 
during  his  Hfe  does  not  enable  him  to  accomplish 
this  by  will. 

Under  such  statutes  as  the  English  statute  of 
1  3  Edward  I.,  ch.  34,  a  wife  may  defeat  her  dower 
by  elopement  and  adultery;  and  other  statutes  may 
give  this  result  to  adultery  alone;  or  to  abandon- 
ment alone;  or  to  other  wrongful  conduct;  but  as  a 
general  rule,  a  w^ife  can  defeat  her  dower  by  an  act 
in  the  nature  of  a  contract,  only  by  pursuing  some 
mode  prescribed  by  some  statute,  unless  her  dis- 
abilities have  been  entirely  removed.  The  statute 
of  the  particular  state  must  be  consulted  on  this 
point. 

In  all  states  where  a  husband  cannot  by  his 
sole  deed  defeat  dower,  statutes  provide  for  the  re- 
lease thereof  by  the  wife.  But  statutes  relating  to 
married  w^omen's  separate  property  have  nothing 
to  do  with  her  dov/er  rights. 

The  provisions  of  the  statute  relating  to  the 
release  of  dower  must  be  strictly  complied  with; 
and  a  release  not  good  at  law  is  not  good  at  all,  and 
cannot  be  rectified  in  equity.  The  release  need  not 
be  in  any  particular  form,  though  in  many  states  it 
must  appear  that  the  wife  signs  for  the  purpose  of 
releasing  her  dower,  while  in  others  it  is  sufficient 
if  she  join  in  or  execute  the  deed,  which  carries  all 
her  interest.  Until  the  delivery  of  the  deed  she  may 
revoke  her  release. 

Unless  the  statute  expressly  authorizes  her  to 
release  a  loan,  her  husband  must  join  in  the  deed 
with  her;  the  husband  must  also  join  in  release  of 
dower  in  a  former  husband's  estate;  but  the  wife 
need  not  necessarily  execute  the  deed  at  the  same 
time  with  the  husband,  and  where  she  must  join 
with  her  husband,  it  is  sufficient  if  she  join  with  his 

277 


WOMAN  UNDER  THE  LAW 

attorney  in  fact,  or  with  his  guardian  or  committee, 
if  he  be  insane.  But  she  must  execute  the  release 
herself;  she  cannot  release  by  power  of  attorney, 
and  cannot,  perhaps,  even  leave  blanks  to  be  filled 
up  after  the  execution.  An  insane  wife  cannot 
release  dower,  nor  can  an  infant  wife;  nor  can  a 
wife's  gucirdian  release  dow^er  for  her. 

Though  a  wife  is  empowered  to  release  her 
dower  by  her  sole  deed  it  is  doubtful  whether  she 
can  release  to  her  husband. 

The  grantee  in  the  release  cannot  be  a  mere 
stranger  but  only  someone  who  holds  in  some  way 
under  the  husband ;  for  the  release  operates  by  way 
of  estoppel  and  an  estoppel  must  be  mutual;  in- 
choate dower,  it  must  be  remembered,  cannot  be 
bargained  and  sold,  but  only  released. 

The  question  of  consideration  is  not  im- 
portant; a  wife  may  reserve  a  consideration  to  her- 
self, but  none  is  implied,  and  a  consideration  mov- 
ing to  her  husband  suffices. 

The  effect  of  a  release  of  dow^er  is  in  the  nature 
of  an  estoppel,  and  not  of  a  grant;  and  as  an  estop- 
pel must  be  mutual,  a  stranger  cannot  avail  himself 
of  a  release  of  dower;  but  it  can  be  set  up  only  by 
the  husband's  grantee  or  someone  entitled  to  stand 
in  his  place.  The  wife  is  not  estopped  by  her  release 
from  setting  up  a  subsequent  title  in  herself,  or  from 
alleging  that  it  was  obtained  by  fraud.  The  effect 
of  the  release  is  confined  to  the  property  actually 
referred  to,  and  if  a  mistake  is  made  in  the  descrip- 
tion, she  cannot  be  made  to  rectify  it.  Nor  does 
her  joining  in  a  release  of  her  dower  have  any  effect 
on  her  ow^n  property;  nor  does  her  conveyance  of 
property  in  a  representative  capacity  affect  her 
dower  interest  in  the  property  conveyed.  But  if  she 
convey  in  a  representative  capacity  and  her  indi- 
vidual capacity  also,  her  dower  is  gone.      If  the 

278 


DOWER 

release  of  dower,  or  the  deed  in  which  a  wife  joins 
to  release  dower,  becomes  inoperative,  it  does  not 
affect  her  rights  and  she  has  dower  as  if  it  had  never 
been  executed. 

Jointure,  a  settlement  so  called  because  usually 
made  upon  a  husband  and  wife  jointly  during  their 
joint  lives,  and  after  the  husband's  death  on  the 
wife,  bars  dower  at  common  law  under  the  statute 
of  uses,  and  in  equity  under  the  doctrine  of  election. 
A  legal  jointure  is  such  a  provision  as  under  the 
statute  of  uses  or  other  statutes  bars  dower;  an 
equitable  jointure  is  such  a  provision  as  requires  a 
widow  to  choose  between  it  and  dower. 

To  a  strict  legal  jointure  under  the  statutes  of 
uses,  which  is  in  force  in  the  United  States  as  a  part 
of  the  common  law,  so  far  as  consistent  with 
modern  statutes,  the  following  are  the  requisites: — 
( I )  the  provision  must  consist  of  an  estate  or  in- 
terest in  land;  (2)  it  must  take  effect  in  possession 
or  profit,  immediately  from  the  death  of  the  hus- 
band; (3)  it  must  be  for  the  wife's  life,  at  least; 
(4)  it  must  be  limited  to  the  wife  herself,  and  not  in 
trust  for  her;  (5)  it  must  be  made  in  satisfaction 
of  her  whole  dower,  and  must  be  so  expressed  in 
the  deed;  (6)  it  must  be  a  reasonable  and  com- 
petent provision  for  the  wife's  livelihood;  (7)  it 
must  be  made  before  marriage. 

An  equitable  jointure  is  any  other  provision 
made  for  a  wife,  which  puts  her  to  an  election,  and 
will,  if  she  accepts  it,  bar  her  of  dower  in  equity, 
independently  of  statutes.  The  provision  must  be 
expressly  in  lieu  of  dower,  or  the  same  instrument 
must  make  a  disposition  of  some  part  of  the  settlor's 
estate  which  is  clearly  inconsistent  with  the  ex- 
istence of  dower  therein,  so  that  in  claiming  dower 
the  widow  would  defeat,  interrupt,  or  disappoint 
some  provision  in  the  instrument.     The  provision 

279 


WOMAN  UNDER  THE  LAW 

may  be  made  by  deed  or  will.  No  technical 
language  is  necessary,  but  it  is  sometimes  very 
difficult  to  determine  whether  the  provision  is  in 
lieu  of  dow^er  or  not.  Evidence  outside  the  instru- 
ment is  not  admissable  as  to  this  point.  In  many 
states,  how^ever,  the  statutes  require  the  widow  to 
elect  betw^een  any  provision  made  for  her  by  will, 
unless  it  is  expressly  stated  not  to  be  in  lieu  of 
dower. 

If,  when  a  wife  is  barred  by  legal  jointure  she 
conveys  away  jointly  with  her  husband  her  jointure 
lands,  she  is  nevertheless  barred  of  her  dower;  but 
if  the  jointure  be  equitable  only,  such  a  conveyance 
is  no  election,  and  dower  may  be  claimed.  If  she  is 
evicted  from  either  kind  of  jointure,  she  may  be 
endowed  of  so  much  of  the  remainder  of  her  hus- 
band's lands  as  may  be  necessary  to  make  up  her 
loss,  provided  that  she  does  not  get  more  altogether 
than  she  would  have  had  if  she  had  taken  dower  at 
first;  and  she  may  be  so  endowed  against  the  hus- 
band's alienee. 

The  wife's  estate  in  her  jointure  lands  is  not, 
like  the  dower  after  assignment,  a  continuance  of 
the  husband's  estate;  the  wife  takes  as  purchaser, 
and,  for  example,  is  not  entitled  to  the  crop  sov^n 
at  the  time  of  the  husband's  death. 

In  certain  cases  a  widow^  (a  wife  being  under 
contractual  disability  cannot  elect)  may  be  required 
to  elect  or  choose  betw^een  her  dower  and  some 
other  provision.  If  a  husband  has  exchanged  some 
lands  for  others,  his  widow  must  elect  to  take  her 
dower  either  in  the  new  or  the  original  lands,  and 
cannot  have  dower  in  both.  By  the  statute  of  uses, 
a  jointure  made  during  coverture  puts  a  widow  to  an 
election;  and  all  equitable  jointures  do  this;  as  do 
devises  in  lieu  of  dow^er;  and  statutes  in  most  states 

280 


I 


DOWER 

require  the  widow  to  elect  between  her  husband  s 
will  and  her  legal  rights,  including  dower. 

As  to  the  manner  and  time  of  election,  it  is 
difficult  in  the  absence  of  statutes,  to  lay  down  any 
definite  rule.  But  if  a  particular  mode  of  election  is 
named  no  other  will  suffice.  If  the  limited  time  for 
election  has  expired  it  is  usually  fatal,  though  in 
certain  cases  equity  may  extend  the  time.  The 
election  must  be  made  by  the  widow  in  person;  she 
cannot  elect  by  attorney;  nor  if  she  is  insane,  nor 
an  infant,  unless  the  statute  provides  for  such  cases, 
can  any  one  elect  for  her.  But,  if  she  elect  while 
insane,  she  may  ratify  her  act  in  a  lucid  interval;  if 
she  be  an  infant,  equity  will  elect  for  her,  or  the 
time  for  election  will  be  extended  till  her  majority. 
But  where,  by  statute,  her  guardian  is  authorized  to 
elect,  her  election  in  person  is  void.  If  she  die 
before  electing  her  representatives  cannot  elect  for 
her.  If  she  marries  before  electing,  it  is  doubtful 
whether  her  husband  must  join  with  her. 

The  effect  of  election  is  to  make  the  widow  a 
purchaser  for  valuable  consideration  of  the  provis- 
ion taken  in  place  of  dower;  and  though  in  case, 
for  example,  of  a  devise,  her  rights  are  inferior  to 
those  of  the  husband's  creditors,  they  are  superior 
to  those  of  other  devisees, — though  there  is  some 
difference  of  opinion  on  this  point.  And  if  she  is 
evicted  she  may,  generally,  have  her  dower  propor- 
tionately. If  her  election  be  to  take  dower,  the  pro- 
vision made  in  lieu  thereof  is  deemed  a  trust  fund 
for  those  who  are  disappointed  by  her  taking  dower. 

A  w^idow's  right  to  dower  depends  upon  the 
law  of  the  place  where  the  land  lies,  and  her  election 
under  a  statute  affects,  in  general,  only  the  lands  to 
which  such  statute  applies — the  lands  within  the 
state. 

During  coverture  a  w^ife  cannot  estop  herself 

281 


WOMAN  UNDER  THE  LAW 

from  claiming  dower,  except  by  a  release  duly  ex- 
ecuted. But  after  her  husband's  death  she  is  sui 
juris,  and  may  lose  her  estate  by  estoppel  just  as  any 
other  person  may. 

Adverse  possession  of  the  husband  of  his  lands 
during  coverture  cannot  bar  the  wife's  dower,  as 
her  interest  becomes  vested  only  on  his  death.  And 
for  various  reasons,  statutes  of  limitations  have 
been  held  not  to  apply  as  against  a  widow's  claim 
for  dower,  though  in  some  states  the  statutes  do  so 
apply. 

If  a  husband's  lands  are  taken  by  right  of 
eminent  domain,  dower  is  defeated,  and  a  husband's 
voluntary  dedication  thereof  to  public  uses  has  the 
same  effect.  If  the  right  of  eminent  domain  is  in 
force  during  coverture,  no  allowance  will,  in  gen- 
eral, be  made  for  inchoate  dower,  but  if  the  property 
is  taken  after  the  husband's  death,  dower  will  be 
allowed  out  of  the  damages. 

Where  a  husband  holds  or  has  held  a  de- 
feasible title,  and  it  is  defeated,  as  where  he  or  his 
heirs  are  evicted  by  title  paramount,  or  a  determin- 
able estate,  and  it  is  terminated  as  a  base  fee,  the 
wife's  dower  also  terminates,  as  her  estate  is  but  a 
continuation  of  her  husband's;  the  possible  excep- 
tion to  this  rule  being  the  case  of  an  estate  determin- 
able on  the  conditional  limitation  or  executory 
devise. 

Under  various  circumstances,  suits  may  be  in- 
stituted for  the  sale  of  land  in  which  a  wife  has 
dower.  If  the  sale  takes  place  under  a  right  sub- 
sequent to  dower,  dower  is  not  affected  thereby; 
but  if  the  sale  takes  place  under  a  lien  prior  to 
dower,  dower  in  the  land  is  defeated,  though  the 
wife  may  have  dower  out  of  the  net  proceeds  if  the 
sale  takes  place  after  the  husband's  death. 

Whether  in  such  suits  the  effect  upon  dower 

282 


DOWER 

depends  upon  whether  the  wife  or  widow  be  a  party 
to  the  suit,  seems  to  depend  rather  upon  local  prac- 
tice and  local  statutes  than  upon  any  settled  prin- 
ciple. But  it  is  permissible  to  make  all  persons  in- 
terested in  a  piece  of  land  parties  to  suits  relating 
thereto;  and  as  in  some  states  dower  would  not  be 
affected  at  all  if  the  wife  were  not  made  a  party,  it  is 
better  always,  when  dower  might  attach,  to  make 
the  wife  a  party. 

A  divorce  a  mensa  et  thoro  does  not  bar  dower, 
but  a  divorce  a  vinculo  matrimonii,  in  the  absence 
of  statute,  does,  even  though  granted  by  a  foreign 
court,  if  it  be  extra-territorially  valid. 

The  husband's  bankruptcy  defeats  dower  only 
in  cases  where  his  voluntary  assignment  w^ould  have 
this  effect,  and  usually  the  assignee  in  bankruptcy 
holds  the  bankrupt's  lands  subject  to  the  wife's 
dower.  It  is  not  a  part  of  the  assignee's  duty  to  try 
to  save  the  wife's  dower  rights;  he  takes  subject 
to  those  rights.  In  some  states,  on  a  husband's 
bankruptcy,  the  wife  is  allowed  dower  at  once  as  if 
he  were  dead. 

Upon  the  husband's  death,  as  has  been  seen, 
dow^er  becomes  consummate,  and  is  a  vested  right; 
but  the  widow  has  no  right  to  enter  upon  her  dower 
land,  and  no  estate  of  dower  until  her  dower  has 
been  assigned  to  her.  She  may  remain  in  the  family 
dwelling  until  dower  is  assigned;  at  common  law 
the  widow  may  remain  in  the  family  home  or  man- 
sion of  her  husband  for  forty  days  after  his  death, 
and  similar  provisions  exist  in  the  statutes  of  most 
of  the  states — this  is  called  her  quarantine ;  and  she 
has  the  right  to  have  dower  assigned  as  soon  as 
practicable,  the  period  being  usually  fixed  by 
statutes. 

The  tenant  of  the  freehold  must  assign  dow^er, 
though  by  statute  this  duty  has  been  placed  upon 

283 


WOMAN  UNDER  THE  LAW 

others,  such  as  the  husband's  executor,  or  a  tenant 
for  years.  And  whoever  is  compellable  by  writ  to 
assign  dower,  may  assign  it  without  writ,  and  vice 
versa. 

The  tenant  assigning  need  not  have  a  good 
title,  his  act  being  ministerial  only;  and  the  party 
with  the  true  title  will  be  bound  if  the  assignment 
were  of  common  right,  and  be  bound  until  he  avoids 
it,  if  the  assignment  were  against  common  right. 

Even  though  an  infant,  the  tenant  must  assign, 
and  a  guardian  may  make  the  assignment.  But  in 
case  of  assignment  compelled  by  writ,  it  is  made 
by  the  sheriff  or  other  officer  of  court. 

The  person  who  is  bound  to  make  the  assign- 
ment of  her  dower  to  the  widow^,  may  do  so  without 
legal  proceedings,  under  the  common  law;  and  an 
assignment  so  made,  if  fair  and  just,  will  be  as  valid 
as  one  made  under  a  decree  of  court.  He  may  either 
set  off  to  her  by  metes  and  bounds  one-third  of  the 
husband's  lands  and  tenements,  or  one-third  interest 
in  his  incorporeal  hereditaments,  thus  giving  her 
exactly  what  she  is  entitled  to;  and  this  is  called  an 
"assignment  of  common  rights.  "  Or  he  may,  by 
an  agreement  w^ith  her,  set  off  to  her  some  portion 
of  the  husbands  lands  and  hereditaments  in  lieu 
of  what  she  is  strictly  entitled  to;  and  this  is  denom- 
inated an  "assignment  against  common  rights." 

The  effect  of  the  two  kinds  of  assignment,  of 
and  against  common  rights,  is  not  the  same.  If  it 
be  an  assignment  of  common  right,  it  is  binding 
though  made  by  a  w^rongful  tenant;  the  widow 
holds  the  property  clear  of  all  incumbrances  inferior 
to  dovs^er,  and  if  it  be  taken  from  her  under  prior 
incumbrances,  she  may  be  endow^ed  anew^  out  of  the 
balance  of  the  estate.  Whereas  an  assignment 
against  common  rights  is  not  binding  unless  made 
by  the  rightful  tenant,  the  lands  are  liable  for  the 

284 


DOWER 

husband's  debts,  and  if  she  loses  any  part  of  them, 
she  cannot  be  endowed  anew. 

The  assignment  may  be  made  without  writing, 
for  the  widow's  right  is  not  thereby  created  but  only 
ascertained. 

At  common  law  the  legal  remedy  to  enforce 
the  right  to  dower  was  by  a  writ  of  dower,  under 
which  judgment  being  obtained,  dower  is  assigned 
by  the  sheriff,  and  then  the  widow  may  obtain  pos- 
session by  ejectment  proceedings.  The  common 
law  remedy  is  practically  obsolete. 

Under  modern  statutes  the  methods  of  assign- 
ing dower  at  law  are  so  varied  that  discussion  of 
them  would  be  very  unsatisfactory;  the  statutes 
themselves  should  be  consulted,  and  in  most  cases 
will  be  found  very  plain  and  simple;  if  not  clearly 
understood,  however,  of  course,  a  lawyer  should  be 
consulted. 

In  equity,  jurisdiction  was  first  taken  to  assign 
dower  in  cases  in  which  discovery  was  prayed;  and 
then  this  jurisdiction  was  extended,  principally  be- 
cause dower  can  be  assigned  by  the  same  machinery 
w^hich  is  used  in  partition  suits  and  in  settling  ac- 
counts, until  it  became  commonly  concurrent  with 
the  jurisdiction  of  law. 

When  dower  in  equitable  estates  is  to  be 
awarded,  equity  has  exclusive  jurisdiction  and 
courts  of  law  are  bound  to  respect  an  assignment  of 
dower  made  by  a  court  of  equity. 

When  the  widow^  sues  for  dower,  all  interested 
persons  are  proper  parties,  though  the  only  neces- 
sary party  is  the  tenant  of  the  freehold.  The  bill 
should  allege  substantially  the  grounds  of  her  right, 
and  if  there  is  no  contest  the  court  may  proceed  at 
once  to  make  the  assignment.  If  the  widow^'s  right 
is  contested  in  equity,  it  is  the  practice  of  the  court 
of  equity  to  delay  the  case  until  the  right  is  estab- 

285 


WOMAN  UNDER  THE  LAW 

lished  at  law.  All  legal  defenses  are  good,  but  no 
equitable  defense  is  good  against  a  legal  title  except 
that  of  laches. 

The  widow  must  prove  her  marriage,  and  the 
seisin  and  death  of  her  husband. 

Costs  are  in  the  discretion  of  the  court.  When 
there  has  been  no  denial  of  the  widow's  rights,  she 
should  pay  the  costs.  But  when  the  defendants 
have  delayed  her  or  disputed  her  rights,  the  costs 
should  be  borne  by  them. 

Dower  may  be  assigned  out  of  the  rents  and 
profits,  by  metes  and  bounds,  or  out  of  money  into 
which  land  has  been  changed. 

As  a  general  rule,  whenever  the  property  in 
which  the  widow  is  entitled  to  dower  is  capable  of 
division,  dower  must  be  set  off  by  metes  and 
bounds.  This  was  the  rule  at  common  law,  but  its 
application  has  proved  so  troublesome  that  such  as- 
signments are  not  common,  and  statutes  have  pro- 
vided other  means  of  giving  a  widow  a  fair  third 
for  her  life.  When  an  assignment  by  metes  and 
bounds  is  about  to  be  made,  the  tenant  need  not 
have  notice.  The  officer  w^ho  makes  the  assign- 
ment is  a  mere  ministerial  agent,  and  has  no  power 
except  such  as  is  given  him  by  the  writ,  and  he  must 
strictly  conform  to  the  law.  His  return  should 
report  that  he  has  made  the  assignment  by  metes 
and  bounds,  and  should  describe  with  reasonable 
certainty  the  property  so  assigned.  If  he  fails  or 
refuses  to  act,  another  may  be  appointed,  and  if  he 
acts  vexatiously  he  may  be  punished. 

In  making  the  division,  quantity  alone  is  not  to 
be  considered,  but  the  value  and  productiveness  of 
the  land  also.  Whether  improvements  are  to  be 
considered  is  hereafter  to  be  discussed.  If  there  are 
several  tracts  of  land  the  widow  has  a  right  to  have 
her  dower  assigned  out  of  each,  but  in  some  states 

286 


DOWER 

if  all  the  tracts  are  held  by  the  same  parties  an  as- 
signment for  all  may  be  made  out  of  any  one,  and 
there  are  cases  which  hold  that  a  husband's  alienee 
may  compel  an  assignment  out  of  the  tracts  not 
aliened.  Assignment  may  even  be  made  of  certain 
rooms  in  a  house  with  the  use  of  the  halls,  etc.  But 
some  property  is  not  capable  of  division,  and  dow^er 
must  be  assigned  as  a  part  of  the  rents  and  profits, 
as  hereafter  shown.  Dower  may  be  assigned  in 
estates  in  common  by  metes  and  bounds  if  such 
estates  have  been  partitioned  or  the  husband's  in- 
terest assigned  to  his  cotenant,  but  otherwise  the  as- 
signment must  be  made  of  a  part  in  common. 

Whenever  the  property  subject  to  dower  is 
incorporeal,  or  is  in  its  nature  incapable  of  a  fair 
division  by  metes  and  bounds,  the  widow  may  be 
allowed  one-third  of  the  actual  or  estimated  profits 
or  rents  during  her  life. 

So  that,  although  a  rent  cannot  be  given  in 
lieu  of  dower  when  the  property  is  divisible,  except 
by  consent,  when  the  property  is  not  divisible,  but 
its  value  consists  of  its  rents  and  profits,  as  in  the 
case  of  a  tavern,  a  mill,  a  ferry  or  a  mine,  a  rent 
may  be  given  as  dower,  distrainable  as  of  common 
right.  If  the  property  is  not  actually  leased,  it  is 
very  difficult  to  determine  what  its  rents  and  profits 
are;  the  yearly  interest  on  its  market  value  is  not 
always  commensurate  with  its  actual  producing 
capacity.  If  the  lands  out  of  which  a  widow  is 
dowable  are  sold  under  a  paramount  lien,  and  she 
is  dowable  out  of  the  surplus  only,  dower  is  usually 
allowed  either  in  a  gross  sum  or  in  a  life  interest  in 
one-third  of  it. 

When  dower  is  not  assigned  out  of  the  lands 
themselves,  or  out  of  the  actual  rents  and  profits 
thereof,  interest,  as  has  been  seen,  is  sometimes 
allowed  on  the  estimated  value  of  the  proportion 

287 


WOMAN  UNDER  THE  LAW 

which  might  have  been  assigned  as  dower,  or  the 
value  of  the  widow's  life  interest  may  be  calculated 
and  given  her  at  once  in  a  gross  sum.  The  power 
of  the  court  to  make  an  award  in  a  gross  sum  has 
been  questioned.  When,  however,  the  court  has 
this  pow^er  and  desires  to  exercise  it,  it  considers  the 
chances  of  life  in  the  widow,  and  the  probable  value 
of  her  interest,  after  such  annuity  tables  as  it 
chooses  to  follow. 

When  before  assignment  improvements  are 
made,  the  widow  is  entitled  to  the  benefit  thereof  if 
the  husband  died  seised,  but  not  if  he  had  aliened 
the  lands  before  his  death.  There  seems  to  be  little 
reason  for  the  distinction,  but  it  is  nearly  every- 
where recognized. 

As  against  the  heir  or  devisee,  it  is  well  settled 
that  the  widow  is  entitled  to  dower  as  it  stands  when 
dower  is  assigned,  including  all  improvements,  ex- 
cept where  statutes  provide  otherwise. 

As  against  the  husband's  alienee,  the  same 
rule  prevails  in  England ;  but  generally  in  the  United 
States  improvements  made  after  the  husband  has 
aliened  the  property  are  excluded  in  assigning 
dower,  and  either  unimproved  parts  are  assigned, 
or  less  is  included  in  the  assignment.  The  value  of 
the  property  is  therefore  estimated  as  of  the  time 
of  the  alienation.  The  time  of  the  alienation  is  de- 
termined by  the  date  of  the  deed,  if  an  absolute 
deed;  by  the  date  of  the  equity  of  redemption's 
passing  from  the  husband  in  the  case  of  a  mortgage, 
for  the  widow  has  the  right  to  improvements  made 
by  the  husband  after  the  execution  of  the  mortgage 
but  before  foreclosure ;  and  by  the  date  of  the  bond 
of  conveyance  in  accordance  with  which  the  deed 
w^as  given,  in  the  case  of  title  following  a  bond  of 
conveyance.  The  fact  of  improvements  must  be 
pleaded,  but  not  in  bar;  and  the  value  thereof  may 

288 


DOWER 

be  determined  in  accordance  with  the  practice  of  the 
particular  court. 

Improvements  are  not  generally  held  to  in- 
clude enhanced  value  due  to  the  improvement  of 
adjacent  lands,  or  to  the  general  prosperity,  or  to  ac- 
cretions, or  to  any  extrinsic  cause;  nor  do  they  in- 
clude mere  repairs.  But  everything  added  by  the 
money  or  skill  of  the  alienee  is  an  improvement 
within  the  meaning  of  this  discussion;  not  only 
buildings  erected,  fences  made,  etc.,  but  platting 
the  land  and  preparing  it  for  a  depot,  for  instance, 
and  crops  sown  are  improvements.  And  in  some 
states  increase  in  value  from  whatever  cause  is 
regarded  as  an  improvement  to  be  allowed  for  in 
awarding  dower. 

Depreciation  in  value  of  property  subject  to 
dower  raises  questions,  just  as  improvement  therein 
does.  If  the  property  has  diminished  in  value  be- 
fore assignment,  as  against  the  heir  or  devisee, 
dow^er  is  assigned  according  to  the  value  of  the 
property  at  the  time  of  the  assignment,  and  if  the 
heir  or  devisee  has  been  guilty  of  waste  he  is  liable 
in  damages.  But  if  the  improvements  have  burned 
down  and  the  heir  or  devisee  has  received  the  insur- 
ance money,  the  widow  is  entitled  to  her  dower 
therein.  As  against  the  alienee,  the  value  of  the 
land  is  taken  as  at  the  time  of  the  assignment  so  far 
as  diminution  has  been  due  to  natural  causes,  or  to 
waste  before  the  husband's  death,  but  the  widow 
must  be  allowed  for  waste  after  her  husband's 
death.  In  New  York,  however,  dower  is  assigned 
according  to  the  value  of  the  property  at  the  time 
of  the  alienation. 

At  common  law,  no  matter  how  much  time 
elapses  before  the  assignment  of  dower,  the  widow^ 
could  not  recover  damages  for  its  detention ;  but  by 
the  statute  of  Merton,  which  has  been  held  in  force 

289 


WOMAN  UNDER  THE  LAW 

in  the  United  States,  she  is  entitled  to  the  whole 
value  of  her  dower  from  the  husband's  death  to  the 
time  of  the  assignment;  and  similar  statutes  are  in 
force  in  several  states.  But  as  the  usual  procedure 
for  dower  is  now  in  equity,  the  right  to  claim  an 
account  has  almost  taken  the  place  of  the  right  to 
damages. 

Equity,  as  has  been  seen,  has  full  jurisdiction 
over  the  assignment  of  dower  and  may  assign 
mesne  profits,  i.  e.  her  share  of  the  rents  and  profits 
between  the  time  of  the  husband's  death  and  the 
time  of  assignment, — even  when  dower  has  been 
assigned  at  law,  and  this  independently  of  the 
statute  of  Merton  or  any  other  statute,  and  as 
against  the  husband's  alienee  as  well  as  against  his 
heir  or  devisee.  But  as  against  the  husband's 
alienee  mesne  profits  are  calculated  only  from  the 
time  of  demand  for  an  assignment,  whereas,  as 
against  the  heir  or  devisee  no  demand  is  necessary. 
If  the  tenant  die  pending  the  suit,  this  does  not 
affect  the  widow's  right  to  mesne  profits;  nor  does 
her  death  pending  suit  prevent  her  representatives 
from  recovering  the  same;  but  whether  her  repre- 
sentatives can  recover  if  she  has  died  without  in- 
stituting suit,  has  been  disputed.  A  release  of 
dower  includes  mesne  profits,  and  a  widow  will  not 
be  allow^ed  to  recover  mesne  profits  if  she  has  mean- 
while occupied  the  land,  or  has  been  compensated 
for  the  delay  in  the  assignment  of  dower. 

The  mesne  profits  are  the  actual  profits  from 
the  date  of  the  husband's  death  or  the  time  of  de- 
mand, as  the  case  may  be,  to  the  time  of  assignment, 
— a  part  of  the  rent  if  the  property  has  been  leased, 
a  share  of  the  crop,  if  a  crop  has  been  raised,  or,  if 
dower  has  been  assigned  in  money,  interest  on  the 
amount. 

The  assignment  of  dower  gives  the  widow  an 

290 


DOWER 

estate,  the  incidents  of  which  have  already  been  dis- 
cussed. 

If  dower  has  been  assigned  without  suit,  fairly 
and  of  common  right,  it  satisfies  and  bars  dower; 
but  if  the  assignment  be  against  common  right,  it 
will  not  avail  as  a  defence  to  any  party  not  privy  to 
the  agreement.  When  assigned  by  suit,  the  lands 
not  assigned  are  freed ;  but  as  the  widow  has  a  right 
to  a  new  assignment  if  the  title  to  the  assigned  lands 
fails,  it  is  necessary  that  one  who  takes  title  in  lands 
out  of  which  dower  has  been  assigned  should  be 
sure  that  the  widow's  title  to  the  lands  assigned  to 
her  is  good.  In  an  assignment,  however,  the  widow 
may  have  received  either  too  much  or  too  little. 

In  the  case  of  an  excessive  assignment,  if  the 
assignment  has  been  made  by  an  adult  without  suit, 
he  can  have  no  relief ;  but  an  infant  may  have  a  writ 
of  admeasurement  of  dower  in  such  a  case.  If  the 
excessive  assignment  has  been  made  in  a  suit  by  the 
officer  of  the  court,  the  tenant  may  by  scire  facias 
have  an  assignment  de  novo,  or  may  perhaps  have 
the  assignment  set  aside  in  equity;  or  he  may  re- 
cover in  ejectment,  lands  out  of  which  the  judgment 
gave  no  right  of  dower.  But  if  the  widow  is  de- 
prived of  lands  once  assigned  to  her  as  dower,  she 
must  be  allowed  for  the  improvements  made  by  her 
in  the  meantime. 

In  case  of  the  failure  of  the  assignment  in 
whole  or  in  part,  if  the  widow^  is  evicted  after  as- 
signment and  thus  loses  her  dower  in  whole  or  part, 
if  the  assignment  were  of  common  right  and  she  had 
received  only  her  apparent  legal  rights,  she  may 
proceed  for  a  new  assignment  out  of  the  remainder 
of  the  lands  subject  to  dower,  as  if  no  assignment 
had  been  made.  But  it  seems  that  at  common  law^ 
this  rule  did  not  apply  as  against  the  husband's 
alienee.     If  the  assignment  were  against  common 

291 


WOMAN  UNDER  THE  LAW 


right  and  she  has  agreed  to  take  the  lands  assigned 
in  Heu  of  the  actual  lands  she  was  entitled  to,  she 
had  no  remedy  if  evicted. 


192 


CHAPTER  X. 
CURTESY 

Curtesy  is  the  estate  to  which  by  common  law 
a  man  is  entitled,  on  the  death  of  his  wife,  in  the 
lands  or  tenements  of  which  she  was  seised  in  pos- 
session, in  fee  simple  or  in  tail  during  their  cover- 
ture, provided  they  have  had  lawful  issue  born  alive 
which  might  have  been  capable  of  inheriting  the 
estate.  It  is  an  estate  for  life  created  by  the  law^. 
When  a  man  marries  a  woman,  seised,  at  any  time 
during  the  coverture,  of  an  estate  of  inheritance,  in 
severalty,  in  coparcenary  or  in  common,  and  hath 
issue  by  her  born  alive,  and  which  might  by  possi- 
bility inherit  the  same  estate  as  heir  to  the  wife, 
and  the  wife  dies  in  the  lifetime  of  the  husband,  he 
holds  the  land  during  his  life  by  curtesy. 

That  he  may  be  entitled  to  a  tenancy  by  the 
curtesy,  four  requisites  must  exist;  viz.,  there  must 
be  a  legal  marriage;  there  must  seisin  by  the  w^ife 
during  coverture;  there  must  be  issue  capable  of 
inheriting  the  estate ;  the  wife  must  be  dead.  Where 
an  illegitimate  child  under  a  statute  becomes  legi- 
timate by  the  subsequent  marriage  of  the  parents, 
the  father  will  be  entitled  to  an  estate  by  curtesy, 
at  the  death  of  the  mother,  although  no  other  issue 
was  born. 

The  marriage  must  be  a  lawful  one ;  though  if 
it  be  a  voidable  one,  it  w^ill  give  curtesy,  unless  it  is 
actually  avoided  during  the  life  of  the  wife.  It  can- 
not be  declared  void  afterwards. 

To  entitle  a  husband  to  an  estate  by  the  cur- 

293 


WOMAN  UNDER  THE  LAW 

tesy  in  the  real  property  of  his  wife,  she  must  have 
been  seised  of  it  during  coverture;  but  it  is  not 
necessary  that  she  should  be  seised  of  it  at  the  time 
of  her  death,  or  at  the  time  of  birth  of  issue.  A 
female  of  full  age,  owning  land,  sold  it  by  verbal 
contract,  received  the  price,  put  the  purchaser  in 
possession,  but  failed  to  convey  until  she  became 
a  feme  covert  and  had  issue  born  alive,  when  her 
husband  united  with  her  in  a  conveyance  to  the 
purchaser.  It  was  held  that  the  husband  was  not 
tenant  by  the  curtesy.  But  if,  on  the  eve  of  her 
marriage,  a  woman  should  convey  her  real  estate 
without  the  consent  of  the  contemplated  husband, 
it  is  a  fraud  on  his  rights  and  void  as  to  him. 

Although  it  is  undoubtedly  the  general 
language  of  the  English  authorities  that  only  seisin 
in  fact  during  coverture  entitles  the  husband  to  an 
estate  by  curtesy,  this  rule,  in  its  literal  strictness, 
has  not  been  adhered  to,  either  in  England  or  in  this 
country.  In  order  to  give  a  right  by  the  curtesy  in 
the  wife's  lands,  it  is  not  sufficient  that  the  wife 
w^as  seised  of  an  estate  of  inheritance  therein  during 
coverture;  she  must  also  have  the  right  to  the  pres- 
ent possession  of  the  freehold. 

Without  birth  of  issue,  no  estate  by  the  curtesy 
can  exist;  the  child  must  be  born  alive;  but,  even 
where  it  dies  immediately  after  birth,  the  right  of 
curtesy  attaches.  The  child  must  have  been  born 
during  the  life  of  the  mother.  The  birth  of  a  child 
after  the  mother's  death  by  the  Caesarean  operation, 
though  it  be  born  alive,  is  not  sufficient  to  confer  the 
right.  It  must  have  been  such  a  child  as  by  pos' 
sibility  might  have  inherited  the  estate. 

Where  a  wife  died  intestate,  leaving  children 
by  a  former  husband,  it  was  held  that  the  surviving 
husband  was  entitled  to  an  estate  as  tenant  by  the 
curtesy,  in  so  much  of  her  real  estate  as  would  by 

294 


CURTESY 

law  descend  to  her  children  of  the  second  marriage. 
A  father  left  to  his  three  children  each  a  lot  of  land 
in  fee,  and  added  "if  either  of  these  three — M,  J 
and  L — should  die  without  lawful  heirs  of  their 
body,  the  estate  shall  fall  to  the  other  two;  if  two 
should  die,  their  estate  shall  fall  to  the  one;  if  the 
one  should  die  without  heirs,  the  estate  shall  be 
equally  divided  between  C's  and  A's  heirs."  Two 
of  the  children  died  unmarried,  before  the  father. 
The  other  one  died  afterward,  but  left  no  issue, 
although  she  had  one  child  born  alive.  It  was  held 
that  her  husband  had  an  estate  by  the  curtesy  in  the 
three  lots. 

A  wife's  declarations,  made  shortly  after  the 
birth  of  a  child,  that  it  had  been  born  alive,  are  not 
competent  evidence  to  establish  her  husband's  title 
to  an  estate  by  the  curtesy. 

In  Pennsylvania  by  statute,  the  birth  of  issue 
is  no  longer  required.  The  right  of  estate  by  the 
curtesy  is  not  complete  before  the  death  of  the 
wife,  although  it  exists  after  marriage,  the  birth  of 
issue  and  seisin.  It  is  then  "initiate"  and  contingent 
on  the  death  of  the  wife.  A  tenancy  by  the  curtesy 
initiate  is  both  salable  and  assignable.  The  interest 
of  the  husband  is  a  legal  estate ;  it  is  a  freehold  dur- 
ing the  lives  of  himself  and  wife,  w^ith  a  freehold  in 
the  remainder  to  himself  for  life,  as  a  tenant  by  the 
curtesy  and  a  remainder  to  the  w^ife  and  his  heirs, 
in  fee.  It  is  a  certain  and  determinate  interest, 
whose  value  may  be  ascertained  by  reference  to 
well  known  rules.  It  is  in  every  sense  his  land  and 
liable  to  respond  for  his  debts.  The  right  of  curtesy 
initiate  is  not  a  vested  right;  and  as  curtesy  con- 
summate is  regarded  as  an  estate  by  descent,  and 
rules  of  descent  are  determined  by  the  law  as  exist- 
ing at  the  time  of  the  ancestor's  death,  it  follows 
that,  during  the  lifetime  of  the  wife  curtesy  initiate 

295 


WOMAN  UNDER  THE  LAW 

may  be  destroyed  by  the  statute.  But  if  the  statute 
does  not  expressly  refer  to  existing  rights,  it  will  be 
applied  only  to  those  that  arise  after  its  passage. 

After  the  death  of  the  wife,  curtesy  initiate 
becomes  curtesy  consummate.  The  estate  is  then 
vested.  It  vests  by  operation  of  law  and  without 
assignment. 

The  right  of  tenancy  by  the  curtesy  can  exist 
only  in  real  estate.  When,  however,  money  is 
treated  in  equity  as  real  estate,  the  husband  may 
have  the  interest  thereof  as  curtesy. 

The  right  to  a  tenancy  by  a  curtesy  is  not  con- 
fined to  legal  estates.  A  husband  is  entitled  to  cur- 
tesy in  equitable  estates  of  inheritance  of  the  wife 
in  possession. 

It  has  been  held  that  the  husband  cannot  be 
tenant  by  the  curtesy  of  the  separate  real  estate  of 
the  wife. 

But  the  better  opinion  seems  to  be,  that,  all  the 
requisites  concurring,  the  husband  may  be  tenant 
by  the  curtesy  of  his  w^ife's  separate  real  estate  not- 
withstanding he  is  cut  off  from  any  participation 
in  the  rents  and  profits  during  coverture.  But  if  the 
purpose  to  cut  him  off  from  the  curtesy  be  clearly 
expressed  in  the  instrument  of  settlement,  then  his 
right  is  gone,  although  formerly  this  could  not  be 
done  at  law. 

By  agreement  with  his  wife  a  husband  may 
relinquish  his  right  to  a  tenancy  by  the  curtesy ;  and 
such  an  agreement  may  be  made  before  or  after 
meu-riage. 

The  right  of  curtesy  is  expressly  abolished  by 
statute  in  some  states,  in  others  retained  as  it  was 
at  common  law,  in  others  not  mentioned  in  the 
statutes,  while  in  others  the  common  law  rights  are 
greatly  modified.  Where  the  right  of  curtesy  is  ex- 
pressly abolished,  the  statute  generally  makes  an- 

296 


CURTESY 

other  provision  for  the  husband,  as  where  the  hus- 
band has  a  right  of  dower  in  his  wife's  estate,  the 
same  as  the  wife  has  in  his  estate.  It  has  been  held 
that  the  acts  relative  to  the  protection  of  the  rights 
of  married  women  entirely  abrogate  the  existence 
of  prospective  tenancy  by  the  curtesy.  Every  qual- 
ity and  incident  that  is  necessary  to  constitute  such 
a  tenancy  is  destroyed  by  the  provisions  of  these 
acts. 

Now,  how^ever,  the  law  seems  to  be  substan- 
tially settled,  that,  while  those  acts  excluded  the 
husband  during  his  life  from  control  of,  or  interfer- 
ence with,  his  wife's  real  and  personal  estate,  and 
gave  to  her  alone  the  power  of  distribution  by  deed 
or  will,  yet  they  left  the  husband  the  right  of  curtesy 
in  her  real  property  in  so  much  as  remained,  at  her 
death,  undisposed  of  and  unbequeathed. 


297 


CHAPTER  XI. 
SEPARATION  BY  AGREEMENT 

By  separation  of  husband  and  wife  is  meant 
their  voluntary  marital  dissassociation ;  a  secession 
of  co-habitation  by  mutual  consent ;  only  colloquial- 
ly is  the  word  to  be  applied  to  a  mere  casual  tem- 
porary absence.  It  is  also  widely  distinguishable 
from  abandonment  or  desertion,  although  some- 
times the  agreement  results  therefrom.  It  is  also 
clearly  distinguishable  from  divorce  a  mensa,  al- 
though involving  sufficient  principles  in  common 
therewith  to  be  considered  cognate  thereto. 

Separation  deeds  are  mutual  deeds  of  arrange- 
ment between  husband  and  wife,  generally  ex- 
ecuted for  the  purpose  of  avoiding  unpleasant  ex- 
posures of  marital  infelicities,  and  of  more  effectu- 
ally providing  for  consequent  altered  circumstances 
of  wife  and  off-spring,  and  for  a  just  mutual  dis- 
position of  property  rights. 

In  England,  such  deeds,  in  the  form  of  articles 
of  separation,  w^ere  once  held  to  be  contra  bonos 
mores,  and  courts  of  equity  refused  to  carry  them 
into  effect.  But  judicial  opinion  has  undergone  a 
change,  and  it  is  now^  w^ell  settled  in  England  that 
such  deeds  are  not  against  public  policy.  It  is  im- 
possible to  say  what  the  opinion  of  a  man  or  judge 
might  be  as  to  what  public  policy  is.  For  a  great 
number  of  years,  both  ecclesiastical  judges  and  lay 
judges  thought  it  was  something  very  horrible,  and 
agednst  public  policy  that  the  husband  and  wife 
should  agree  to  live  separate,  and  it  was  supposed 

298 


SEPARATION    BY    AGREEMENT 

that  a  civilized  country  could  no  longer  exist  if  such 
agreements  were  enforced  by  courts  of  law,  whether 
ecclesiastical  or  not.  But  a  change  came  over  judi- 
cial opinion  as  to  public  policy;  other  considera- 
tions arose  and  people  began  to  think,  that,  after  all, 
it  might  be  better  and  more  beneficial  for  married 
people  to  avoid  in  many  cases  the  expense  and  scan- 
dal of  suits  of  divorce  by  settling  their  differences 
quietly  by  the  aid  of  friends  out  of  court,  although 
the  consequence  might  be  that  they  would  live 
separately,  and  that  was  the  view  carried  out  by 
the  court  when  it  becEune  once  decided  that  separa- 
tion deeds,  per  se,  were  not  against  public  policy. 
Thus  is  presented  the  anomaly  that  while  separations 
in  pais  or  in  court  are  not  to  be  sanctioned  except 
on  proof  of  a  dereliction  legally  defined  and  declared 
sufficient,  never  on  the  consent  of  the  parties, 
nevertheless,  as  the  wife  may  bring,  defend,  and 
settle  divorces  she  may  make  an  agreement  whereby 
suit  is  avoided. 

It  has  also  been  held  in  some  of  the  United 
States  that  articles  of  separation  between  husband 
and  w^ife,  whether  entered  into  before  or  after  the 
separation,  are  against  law  and  public  policy,  and 
therefore  void.  But  in  almost  all  the  states,  such 
deed  is  good  as  to  provisions  for  maintenance,  but 
not  as  a  bar  to  cohabitation. 

In  some  of  the  states,  statutes  inhibit  any 
change  of  marital  rights  and  obligations  other  than 
by  judicial  act.  The  effect  of  separation  articles, 
especially  as  to  third  persons,  often  turns  upon  the 
extent  to  which  the  legislature  has  enabled  the  wife 
to  contract.  The  statutory  provisions,  therefore,  as 
aloO  those  for  voluntary  separation,  are  very 
diverse. 

In  Alabama  upon  voluntary  separation  the 
court  of  chancery  may,  on  petition  of  one  party, 

299 


WOMAN  UNDER  THE  LAW 

and  twenty  days  notice  to  the  other,  permit  the 
father  or  the  mother  to  have  the  custody  and  con- 
trol of  the  children,  and  to  superintend  and  direct 
their  education,  having  regard  to  the  prudence, 
ability  and  fitness  of  the  parents,  and  the  age  and 
sex  of  the  children.  Her  voluntary  abandonment 
of  him  against  his  consent  is  not  a  voluntary  separa- 
tion. The  assent  of  both  may  be  implied,  though 
not  expressed.  His  wish  for  her  to  go  may  be  in- 
dicated by  cruel  treatment. 

In  Arizona,  no  matrimonial  agreement  may  be 
altered  after  the  solemnization  of  marriage. 

In  California,  a  husband  is  not  liable  for  the 
support  of  his  wife  when  she  is  living  apart  from 
him  by  agreement,  unless  such  support  is  stipulated 
in  the  agreement.  The  mutual  consent  is  a  suffi- 
cient consideration  for  the  agreement  to  separate. 

In  Colorado,  as  in  other  states,  procurement 
by  fraud  will  invalidate  the  agreement. 

In  the  Dakotas,  the  husband  and  wife  cannot, 
by  any  contract  with  each  other,  alter  their  legal 
relations,  except  as  to  property,  and  except  that 
they  may  agree  in  writing  to  an  immediate  separa- 
tion, and  may  make  provision  for  the  support  of 
either  of  them  and  for  their  children  during  such 
separation.  The  mutual  covenants  constitute  a 
sufficient  consideration  for  the  deed. 

In  Georgia,  the  contracts  of  a  married  woman 
are  generally  void  as  we  have  seen. 

In  Illinois,  the  wife  cannot  abandon  her  hus- 
band without  his  consent,  to  acquire  separate  in- 
come. Equity  will  compel  him  to  pay  promissory 
notes  given  upon  a  separation  to  secure  her  support, 
but  fraudulently  gotten  possession  of  by  him.  Her 
agreement  to  return  and  cohabit  will  support  his 
agreement  to  pay  money  to  a  trustee  for  her  use. 

In  Indiana,  the  wife  of  an  absentee  has  all  the 
300 


SEPARATION    BY    AGREEMENT 

rights  of  a  feme  sole;  and  a  parol  agreement  for 
separation  without  intervention  of  any  trustee  has 
been  sustained  in  that  state. 

In  Iowa,  a  separation  deed  will  be  sustained  as 
to  the  maintenance  and  mutual  disposition  of  pirop- 
crty  rights. 

In  Kansas,  husband  and  wife  may  contract 
with  each  other  so  as  to  pass  title. 

In  Kentucky,  a  contract  for  separation  with  no 
trustee  will  not  be  enforced;  but  one's  contract  to 
support  his  wife,  made  in  view  of  an  immediate 
separation,  is  valid;  otherw^ise,  if  of  one  not  imme- 
diately to  take  place.  A  recital  in  a  separation  deed 
that  she  had  abandoned  him  "without  legal  cause 
for  dower  or  alimony"  was  held  ground  to  refuse 
dower  after  his  death. 

In  Maine,  a  married  woman  may  release  to  her 
husband  the  right  to  control  her  property.  And  a 
divorced  wife  may  recover  on  a  note  executed  to  her 
by  her  husband  during  coverture. 

In  Maryland,  only  by  causes  that  show  an  ab- 
solute impossibility  to  discharge  the  marriage  duties 
can  separation  be  justified.  A  wife  living  separate 
from  her  husband,  unjustifiably  and  without  his 
consent,  cannot  be  allowed  maintenance  out  of  her 
inherited  legal  estate.  In  case  of  a  separation  deed 
not  providing  for  an  indemnity  against  the  wife's 
debts,  the  court  will  not  compel  the  husband  to  aid 
in  giving  title  to  land  she  has  assumed  to  convey.  A 
separation  deed  signed  by  the  v/ife's  attorney  and 
not  by  herself,  w^as  held  invalid  by  the  laws  of  that 
state.  A  separation  deed  with  trustee,  for  support, 
protects  the  husband  against  a  claim,  even  for  neces- 
saries furnished  the  wife  by  a  third  party. 

In  Massachusetts,  a  bond  between  husband 
and  wife  is  not  void  as  against  public  policy.  Deeds 
wherein  the  husband,  in  contemplation  of  imme- 

301 


WOMAN  UNDER  THE  LAW 

diate  separation,  agrees  to  pay  a  trustee  money  for 
the  wife's  support,  are  not  against  public  policy. 
Payment  of  arrears  thereunder  may  be  enforced 
after  her  death.  The  title  to  a  note  handed  to  her 
on  separation,  has  been  held  by  the  laws  of  that 
state  to  remain  in  him. 

In  Minnesota,  except  as  to  real  estate,  she  may 
contract  with  her  husband  as  if  sole ;  and  they  shall 
be  held  to  have  notice  of  each  other's  contracts  and 
debts,  w^herever  rights  of  creditors  come  in  question. 
She  may  alone  release  dower  in  lands  of  a  former 
husband. 

In  Mississippi,  the  common  law,  as  to  the  dis- 
abilities of  married  women,  and  its  effect  on  the 
rights  of  property  of  the  wife,  is  totally  abrogated; 
and,  happily,  husband  and  w^ife  may  sue  each  other 
in  Mississippi.  A  separation  deed  is  void  without, 
but  valid  with  a  trustee,  but  there  must  be  mutual 
intent  to  separate. 

In  Montana  (this  is  worthy  of  note)  a  married 
woman  may  make  contracts  oral  or  written,  sealed 
or  unsealed,  and  may  waive  or  relinquish  any  rights 
or  interest  in  real  estate,  either  by  person  or  by  at- 
torney, in  the  same  manner,  to  the  same  extent, 
and  with  the  like  effect  as  may  a  married  man. 

In  Nebraska,  a  married  woman  will  not  be 
bound  by  any  covenant  in  a  joint  deed  of  herself 
and  husband  and  the  w^ife  may  recover  on  a  note  ex- 
ecuted to  her  by  her  husband  during  coverture. 

In  Nevada,  a  husband  and  wife  may  agree  to 
immediate  separation,  and  may  make  provision  for 
the  support  of  either  of  them  and  of  their  children 
during  such  separation.  The  mutual  consent  is  a 
sufficient  consideration  therefor. 

In  New  Hampshire,  the  wife  of  an  alien  may, 
after  six  months'  residence,  hold  and  convey  real 
property,  as  if  sole,  and  have  exclusive  custody  of 

302 


SEPARATION    BY    AGREEMENT 

her  minor  children  Hving  with  her.  Under  the  stat- 
ute of  1  860  giving  the  wife  control  of  her  separate 
property  she  may,  it  seems,  contract  with  her  hus- 
band in  relation  thereto.  A  note  and  mortgage  ex- 
ecuted by  the  husband  with  a  view^  to  divorce  was 
held  void  by  the  laws  of  that  state. 

In  New  Jersey,  a  wife  may  contract  as  if  sole, 
except  as  accommodation  endorsor,  guarantor  or 
surety.  A  deed  not  signed  by  the  trustee,  was  held 
not  operative  except  as  an  agreement  to  live  sepa- 
rate. The  husband's  conveyance  to  a  trustee  for 
the  use  of  his  wife  on  executing  articles  of  separa- 
tion, w^ill  not  be  set  aside  for  her  subsequent  adul- 
tery w^hile  living  apart. 

In  New  York,  a  married  woman  may  contract 
as  if  unmarried  except  v^ith  her  husband.  In  cer- 
tain cases,  such  as  cruelty,  conduct  rendering  co- 
habitation unsafe  and  improper,  abandonment,  and 
neglect  to  provide  for  the  wife,  an  action  may  be 
maintained  for  separation  from  bed  and  board,  for- 
ever, or  for  a  limited  time. 

In  North  Carolina,  a  woman  living  apart  under 
a  registered  deed  of  separation,  may  be  a  free  trader. 
No  contract  between  husband  and  vdfe  made  during 
coverture  will  be  held  valid  to  affect  or  change  any 
part  of  the  real  estate  of  the  wife,  or  the  accruing 
income  thereof,  for  a  longer  time  than  three  years. 
Contracts  between  husband  and  wife,  not  forbidden 
by  the  preceding  requirement  and  not  inconsistent 
with  public  policy  are  valid.  A  voluntary  separa- 
tion under  some  circumstances,  is  recognized  as  a 
legal  condition,  out  of  which  may  arise  certain 
powers  to  be  exercised  over  her  estate. 

In  Ohio,  a  husband  or  wife  may  enter  into  any 
engagement  or  transaction  with  the  other,  or  with 
any  other  person,  which  either  might  if  unmarried; 
subject,  in  transactions  between  themselves,  to  the 

303 


WOMAN  UNDER  THE  LAW 

general  rules  which  control  the  actions  of  persons 
occupying  confidential  relations  with  each  other.  A 
husband  and  w^ife  cannot  by  any  contract  with  each 
other  alter  their  legal  relations,  except  that  they  may 
agree  to  any  immediate  separation,  and  may  make 
provision  for  the  support  of  themselves  and  their 
children  during  the  separation.  Articles  executed 
with  a  trustee  for  separation  and  the  wife's  main- 
tenance are  not  against  public  policy.  A  post-nup- 
tial agreement,  appropriating  property  to  her  sepa- 
rate use,  though  void  at  common  law,  will  be  sus- 
tained in  equity. 

In  Oklahoma,  the  same  provision  for  a  separa- 
tion agreement  has  been  made  as  in  Nevada. 

In  Oregon,  a  conveyance  by  a  husband  or  w^ife 
to  the  other  is  valid  and  they  may  contract  with  each 
other. 

In  Pennsylvania,  as  early  as  1 846,  the  doctrine 
was  w^ell  settled  that  separation  deeds  were  valid 
and  effectual,  both  at  law  and  in  equity,  provided 
their  object  be  actual  and  immediate  and  not  a  con- 
tingent or  future  separation. 

In  Rhode  Island,  in  the  absence  of  express  pro- 
vision to  the  contrary,  a  separation  deed  is  no  bar  to 
a  divorce. 

In  South  Carolina,  a  bond  to  a  trustee,  reciting 
an  agreement  to  live  separate,  and  conditioned  to 
pay  an  annual  sum  for  the  use  of  the  wife,  is  valid ; 
and  it  may  be  shown  by  parol  evidence  that  a  sepa- 
ration had  previously  taken  place,  and  that  the  bond 
was  given  to  compromise  a  suit  for  alimony. 

In  Tennessee,  married  women  over  the  age  of 
twenty-one  years,  owning  the  fee  or  other  legal  or 
equitable  interest  or  estate  in  real  estate,  who  have 
abandoned  their  husbands,  or  whose  husbands  may 
be  non  compos  mentis,  or  whose  husbands  may  fail 
or  refuse  to  cohabit  with  or  have  abandoned  them, 

304 


SEPARATION    BY   AGREEMENT 

shall  have  the  same  powers  of  disposition  by  will, 
deed,  or  otherwise  as  are  possessed  by  unmarried 
w^omen.  The  husband's  concurrence  therein  is  not 
necessary ;  and  he  may  be  estopped  by  a  separation 
bond  from  claiming  any  portion  of  the  wife's  estate. 

In  Texas,  the  wife  may  contract  debts  for 
necessaries  furnished  herself  or  children,  and  for  all 
expenses  which  may  have  been  incurred  by  the  wife 
for  the  benefit  of  her  separate  property.  For  such 
debts  the  husband  and  wife  must  be  sued  jointly. 

In  Utah,  the  separate  property  of  each  spouse, 
may  be  held,  managed,  controlled,  transferred,  and 
in  any  manner  disposed  of  by  the  spouse  so  owning 
or  acquiring  it  without  any  limitation  or  restriction 
by  reason  of  marriage. 

By  the  Edmunds-Tucker  law  of  1887,  dissolv- 
ing the  incorporation  of  the  Mormom  Church,  a 
widow  is  endowed  of  a  third  part  of  all  lands 
whereof  her  husband  was  seised  of  an  estate  of  in- 
heritance at  any  time  during  the  marriage. 

In  Vermont,  an  agreement  of  separation, 
signed  by  the  husband  and  the  wife's  father,  as  her 
agent,  w^as  held  to  be  a  good  defence  to  her  petition 
for  a  divorce  for  acts  of  cruelty  occurring  before  the 
agreement. 

In  Virginia,  a  married  w^oman  may  contract  as 
if  sole  in  respect  to  her  trade,  services  or  separate 
estate.  A  separation  deed  executed  under  appre- 
hension of  a  suit  for  divorce  for  the  wife's  adultery 
was  held  invalid. 

In  Washington,  the  earnings  and  accumula- 
tions of  the  wife  and  of  her  minor  children  living 
with  her,  or  in  her  custody  while  she  is  living  sepa- 
rate from  her  husband,  are  the  separate  property  of 
the  wife. 

In  West  Virginia,  a  wife  may  control  her  sepa- 
rate property,  but  not  dispose  of  her  real  estate 

305 


WOMAN  UNDER  THE  LAW 

without  her  husband's  consent,  unless  she  be  living 
apart  from  him  or  he  be  non  compos  mentis.  If  by 
an  ante-nuptial  agreement  or  otherwise  he  has 
acquired  any  of  her  separate  property,  he  is  liable 
for  her  ante-nuptial  debts  contracted  for  its  value. 

In  Wisconsin,  the  wife's  separate  property  and 
earnings  are  not  subject  to  her  husband's  control. 
A  mutual  agreement  for  each  to  release  all  interest 
in  the  property  of  the  other  (not  in  view  of  separa- 
tion) is  void. 

An  act  enabling  a  married  woman  to  contract 
as  if  sole  as  to  her  separate  property,  may,  in  the 
absence  of  a  contrary  provision,  apply  to  articles 
entered  into  with  her  husband;  such  statute  must  be 
liberally  construed. 

No  particular  form  is  prescribed  for  the  deed 
of  separation  either  by  statute  or  usage;  and  a 
mere  parol  agreement  for  separation  may  be  valid. 

It  must  be  evident  from  what  has  been  said 
above,  and  from  the  principle  of  the  matter,  that  the 
rights  of  the  public  are  not  to  be  ignored  in  a  volun- 
tary marital  separation ;  wherefore,  it  follows  that  a 
bargcdn  for  a  future  separation  is  invalid,  while  a 
separation  having  once  taken  place  a  provision  look- 
ing to  the  wife's  maintenance  is  valid  and  proper. 

As  between  the  parties,  the  husband's  duty  to 
support  his  wife  is  a  sufficient  consideration  for  his 
promise  to  pay  her  an  allowance.  She  must  have 
some  valuable  consideration  for  the  release  of  her 
rights.  There  must  also  be  some  valuable  considera- 
tion against  existing  creditors,  as,  for  instance,  a 
third  party's  promise  to  indemnify  him  against  her 
debts.  Mutual  consent  may  be,  perhaps  of  itself 
alone,  a  sufficient  consideration  for  the  contract; 
certainly,  if  so  declared  by  statute.  Conciliation 
and  the  family's  highest  interests  are  deemed  as 
weighty  as  any  mere  pecuniary  consideration.     The 

306 


SEPARATION    BY    AGREEMENT 

trustee's  indemnifying  the  husband  against  the 
wife's  future  debts  is  a  valuable  consideration,  and 
takes  the  conveyance  out  of  the  statute  of  fraudulent 
conveyances. 

Formerly  it  was  deemed  absolutely  necessary 
that  the  property  of  which  the  wife  was  to  have  ex- 
clusive use  be  vested  in  trustees  for  her  benefit; 
and  that  the  husbands  agreement  should  be  made 
with  such  trustees,  or  at  least  with  somebody  ca- 
pable of  contracting  with  him  for  her  benefit.  This 
is  still  customary  and  proper,  but  not  indispensable. 

Ordinarily,  the  law  gives  the  father  the  custody 
of  the  children.  The  courts,  however,  look  to  the 
child's  welfare  as  paramount,  and  award  the  cus- 
tody to  that  parent  who  is  most  proper,  fit  and  able 
to  promote  the  same.  If  not  prejudicial  to  this,  any 
family  arrangement  in  the  deed  of  separation  as  to 
custody,  visits,  and  other  incidental  matters,  will 
be  sustained.  Under  the  present  English  law,  a 
provision  as  to  children  is  construed  wholly  w^ith 
regard  to  their  welfare.  In  the  deed  of  a  medical 
officer  of  the  British  Army,  having  four  children, 
the  eldest  eleven  and  the  youngest  three  years  old, 
he  stipulated  that  after  his  approaching  absence  in 
India,  he  should  resume  their  entire  custody,  the 
wife  to  be  accorded  full  and  free  access  to  them,  to 
the  extent,  at  least  of  her  having  the  opportunity 
of  spending  one  day  in  every  fortnight  with  them. 
Four  years  afterwards  he  was  ordered  to  Egypt  and 
proposed  to  take  the  first  child,  a  daughter,  and  the 
third  one,  a  son,  with  him.  On  her  application  for 
an  injunction — it  w^as  held,  that  the  deed  did  not 
preclude  him  from  taking  them,  there  being  no 
proof  that  his  purpose  w^as  to  prevent  her  from  hav- 
ing access  to  them. 

The  ordinary  grounds  for  avoiding  a  contract 
apply  to  a  separation  deed;  e.  g.,  procurement  by 

307 


WOMAN  UNDER  THE  LAW 

fraud  or  undue  stress,  except,  sometimes,  in  case  of 
infancy  and  coverture.  Resumption  of  cohabita- 
tion, restoring  the  former  relations,  will  also  avoid 
the  deed.  A  casual  intercourse  of  three  days  how- 
ever has  been  held  not  to  be  proof  of  permanent 
reconciliation;  and  a  mere  cessation  of  sexual  in- 
tercourse is  not  such  separation  as  will  sustain  the 
deed.  Mere  communication  by  letters  may  not  im- 
port recohabitation.  And  an  agreement  for  separa- 
tion has  been  held  not  to  be  suspended  during  rec- 
onciliation. 

The  fact  that  before  the  marriage  the  wife  had 
illicit  intercourse  with  another  than  the  husband, 
and  induced  him  to  execute  the  deed  in  contempla- 
tion of  a  renewal  thereof,  w^ould  be  grounds  for  its 
avoidance. 

The  husband's  conveyance  to  a  trustee  for  the 
wife's  use,  made  on  execution  of  separation  articles, 
will  not  be  set  aside  for  her  subsequent  adultery 
while  living  apart.  Adultery  may  be  a  ground  for 
forfeiture  of  dower  but  not  of  a  jointure.  A  deed 
executed  under  the  wife's  apprehension  of  a  hus- 
band's suit  for  divorce  on  the  ground  of  her  adul- 
tery, and  wherein  she  conveyed  to  a  trustee  $1  2,000 
worth  of  real  estate,  for  him  and  the  two  children, 
he  to  deliver  to  the  trustee  annually  certain  provis- 
ion for  her  support — was  held  invalid.  In  England, 
it  has  been  held,  that  a  deed  made  between  husband 
and  w^ife  and  a  trustee  with  a  covenant  by  the  hus- 
band to  pay  the  trustee  an  annuity,  in  case  she  live 
apart  from  him,  is  void,  as  contemplating  a  future 
separation  at  her  pleasure,  and  therefore  against 
marriage  policy.  Where  a  deed  stipulated  that  the 
husband  should  not  visit  the  wife  without  her  con- 
sent, his  visit  to  her  w^ith  her  consent,  and  passing 
one  night  in  her  bed-chamber,  was,  in  absence  of 

308 


SEPARATION    BY    AGREEMENT 

any  other  evidence  of  reconciliation,  held  not  to 
avoid  the  deed. 

If  the  consideration  be  apparent,  the  arrange- 
ment fair,  and  the  trustees'  duties  clearly  defined, 
equity  v/ill  enforce  a  deed  made  in  continuation  of 
a  separation,  or  in  contemplation  of  an  immediate 
separation;  and  sometimes,  a  post-nuptial  contract 
containing  stipulations  void  as  to  law. 

At  common  law  a  married  woman  could  not 
contract  and  sue  and  be  sued  as  a  feme  sole,  even 
though  living  apart  from  her  husband  and  having  a 
separate  maintenance  secured  to  her  by  deed.  But 
this  rule  has  been  largely  modified  by  statute.  In 
England  it  has  been  held  that  the  general  reputation 
of  separation  and  allowance  for  support  is  sufficient 
to  protect  the  husband  against  a  claim  for  neces- 
saries furnished  the  w^ife. 

A  deed  of  separation  is  generally  no  bar  to  a 
suit  for  divorce;  though  in  England,  articles  of 
separation  were,  in  the  House  of  Lords,  held  to  form 
an  insuperable  bar  to  the  special  interposition  of 
the  legislature  on  an  application  for  a  divorce. 

By  the  common  law  of  England,  and  of  many 
of  the  states,  and  by  the  statutes  of  some  of  the 
states,  he  who  has  abandoned  his  wife  without 
provision  for  her  support  is  presumed  to  have 
waived  his  right  to  her  acquisitions  as  a  sole  trader, 
and  she  may  sue  and  be  sued,  contract  and  convey, 
as  a  feme  sole;  in  many  instances,  however,  an  or- 
dinary protracted  absence  being  distinguished  from 
that  of  his  imprisonment,  exile,  or  other  civil  death. 
The  subject  can  be  comprehended  only  by  an  his- 
torical and  comparative  view^.  In  England  the  law 
was  declared  in  a  case,  the  total  report  whereof  is 
as  follows:  "An  ordinary  working-man  married 
a  woman  of  like  condition;  after  cohabitation  for 
some   time   he   left,    and   during   his   absence   she 

309 


WOMAN  UNDER  THE  LAW 

worked ;  and  this  action  being  brought  for  her  diet, 
the  money  she  earned  should  go  to  keep  her.'* 
In  Massachusetts  in  1818,  it  was  held  that  a 
feme  covert,  w^hose  husband  had  deserted  her  in 
a  foreign  country  and  w^ho  had  thenceforth  main- 
tained herself  a  feme  sole,  and  for  five  years  had 
lived  in  Massachusetts  (he  never  being  in  the 
United  States),  w^as  competent  to  sue  and  be  sued 
as  a  feme  sole,  and  her  release  was  a  valid  discharge 
of  a  judgment  recovered  by  her.  This  decision  has 
been  quoted  with  approval  by  the  United  States 
Supreme  Court.  In  Massachusetts,  it  was  early 
held  that  a  wife  whose  husband  is  an  alien  or  non- 
resident is  restored  to  her  capacity  to  contract  as  a 
feme  sole. 

After  their  voluntary  separation,  they  may 
for  some  purposes,  be  witnesses  for  or  against  each 
other. 

His  living  apart  from  her  has,  under  certain 
circumstances,  been  held  to  deprive  him  of  remedy 
for  her  misconduct.  Where  a  suspecting  husband 
took  a  lodging  for  his  w^ife,  it  was  held  that  he  could 
not  maintain  an  action  for  criminal  conversation 
committed  by  her  while  he  remained  aw^ay. 

The  conjugal  relation  imposes  upon  the  hus- 
band the  duty  to  support  the  wife.  If  he  has  pro- 
vided therefor  by  deed  or  otherwise,  and  is  ful- 
filling the  provision,  she  cannot  pledge  his  credit 
therefor;  otherw^ise,  if  he  fails  to  fulfill  the  stipula- 
tion or  to  pay  the  alimony  in  a  decree  a  mensa.  In 
general,  upon  their  voluntary  separation  without 
sufficient  provision  for  her  maintenance,  he  is  liable 
for  medical  attendance  or  other  necessaries  fur- 
nished her  by  third  parties.  This  general  rule  ap- 
plies in  many  instances  of  separation  not  mutually 
voluntary.  In  a  case  w^here  he  unjustifiably  ab- 
sented himself,  he  w^as  held  liable  for  debts  mean- 

310 


SEPARATION    BY    AGREEMENT 

while  incurred  by  her  in  keeping  a  boarding-house 
for  her  support.  The  decision  as  to  requisites,  for 
recovery  in  a  suit  against  him  upon  debts  incurred 
by  her  for  support  while  apart,  are  not  uniform.  As 
to  suits  for  necessaries  furnished  during  cohabita- 
tion, see  chapter  on  Husband  and  Wife,  In  England, 
one  who  furnishes  support  to  an  unjustly  deserted 
wife  has  a  remedy  in  equity  against  the  husband. 
While  the  presumption  of  her  agency  continues,  the 
burden  of  proof  is  on  the  husband  to  show^  that  he 
had  supplied  her  sufficient  maintenance  according 
to  their  condition  in  life.  It  was  held  in  Massachu- 
setts that  he  was  not  chargeable  with  other  supplies 
furnished  her  w^here,  on  separation  by  mutual  con- 
sent, the  husband  paid  the  wife  three  hundred  dol- 
lars, she  agreeing  to  make  no  claim  to  support,  and 
to  release  her  dower  right  in  his  land,  and  she  made 
no  such  claim  nor  any  offer  to  return.  Where,  on 
such  separation,  he  contracted  w^ith  her  father  for 
her  maintenance,  but  she  afterw^ards  left  her  father 
without  any  good  cause,  it  was  held  in  New  Hamp- 
shire that  she  could  not  pledge  her  husband's  credit. 
This  presumption  of  agency  does  not  extend 
to  authorize  her  to  borrow  money  to  pay  out  for 
necessaries.  His  assent  to  the  furnishing  will  be 
presumed,  upon  proof  that  he  knew  thereof  and 
made  no  objection.  Whether  upon  separation  w^ith 
a  sufficient  allowance,  which  the  husband  continues 
to  meet,  or  upon  adequate  provisions  from  any 
other  source,  he  must  give  express  notice  thereof 
in  order  to  exempt  himself  from  liability  to  trades- 
men assuming  to  deal  with  her,  the  decisions  have 
not  been  uniform.  In  Missouri,  he  has  been  held 
liable,  upon  failure  to  so  notify  creditors.  In 
Georgia,  by  statute,  notice  relieves  him  if  she  aban- 
dons him  v/ithout  sufficient  provocation;  but  not  if 
for  his  misconduct.     In  Michigan,  in  a  proceeding 

311 


WOMAN  UNDER  THE  LAW 

at  law  to  recover  against  the  husband's  estate  for 
the  wife's  support,  the  sufficiency  of  the  alimony 
allowed  in  chancery  cannot  be  reviewed  by  the  jury. 
In  New  York,  the  report  of  a  referee,  fixing  alimony, 
if  not  confirmed,  is  no  defence  to  a  suit  for  neces- 
saries. He  has  sometimes  been  held  liable  notwith- 
standing his  express  prohibition.  In  the  leading 
English  case,  thereon,  the  majority  of  the  court  held 
that  the  husband  could  not  be  held  against  his  ex- 
press prohibition.  In  general,  upon  a  separation,  a 
party  furnishing  the  wife  with  necessaries,  accepts 
at  his  peril  her  pledge  of  the  husband's  credit;  and 
must  show  the  existence  of  justifiable  cause,  espe- 
cially if,  at  the  time  thereof,  he  was  aware  of  her 
intent  of  desertion.  If  the  wife  has  justifiably  with- 
drawn and  dies,  the  husband  is  liable  for  her  funeral 
expenses.  In  general,  he  is  also  liable  for  proper 
expenses  in  legal  proceedings,  if  incurred  by  her 
because  of  his  misconduct.  So  also  does  the  general 
rule  of  the  husband's  liability  for  necessaries  apply 
where  his  wrong  doing  compels  the  separation. 
Where  a  husband  placed  a  dissolute  woman  at  the 
head  of  his  table,  and  confined  his  wife  on  a  charge 
of  insanity,  but  she  escaped,  it  was  held  that  he, 
not  verbally  forbidding  her  return,  was  not  liable 
for  necessaries  furnished  her.  This  decision  has 
been  severely  animadverted  upon  in  England.  The 
court  said:  "If  a  man  renders  his  house  unfit  for  a 
modest  w^oman  to  remain  in  it,  she  is  authorized  in 
going  aw^ay."  The  decision  has  also  been  disap- 
proved in  America  in  a  case  involving  precisely  the 
same  circumstances.  The  husband  is  also  liable  for 
necessaries  if  she,  although  voluntarily  and  unjus- 
tifiably leaving  him,  has  returned,  or  made  a  bona 
fide  offer  to  return. 

One  seeking  to  charge  the  husband  for  neces- 
saries furnished  must  make  out  a  case  negativing 

312 


SEPARATION    BY   AGREEMENT 

captious  abandonment.  As  to  what  constitutes 
desertion  or  abandonment  see  chapter  on  Divorce. 
In  Pennsylvania,  her  withdrawal  through  wrongful 
representation  by  his  relatives  that  she  intended  to 
put  him  in  an  insane  asylum,  was  held  not  to  be 
desertion.  In  West  Virginia,  a  charge  of  prostitu- 
tion made  by  the  husband  against  the  wife  falsely, 
is  deemed  cruel  treatment  and,  perhaps,  abandon- 
ment. In  Louisiana,  where  a  wife's  incessant  de- 
mands for  money,  scorn  and  personal  violence  w^ere 
met  by  the  husband  with  what  the  court  termed 
"unresisting  imbecility"  until  he  abandoned  the 
dwelling,  she  was  held  not  to  be  entitled  to  a  decree 
for  separation. 

Her  bigamy,  if  committed  through  his  fault, 
has  been  held  not  to  exempt  him  from  liability  for 
her  support.  So  also  as  to  her  adultery  committed 
through  his  connivance.  In  New  Hampshire,  it  has 
been  held  that  his  duty  to  support  her  is  not  ter- 
minated by  her  adultery  committed  with  his  written 
consent  given  on  condition  that  she  shall  not  look 
to  him  for  support.  Proof  that  the  wife,  at  the  time 
of  furnishing  her  with  the  necessaries,  was  living  in 
open  adultery,  constitutes  a  valid  defence  to  the 
suit  against  the  husband  therefor.  So  also  if  the 
plaintiff  knew  at  the  time  that  the  husband  had  dis- 
carded her  for  her  adultery.  It  has  even  been  held 
that  where  the  wife  eloped  with  an  adulterer,  the 
husband  was  not  liable,  although  the  tradesmen  had 
no  notice  of  the  fact.  Separation  by  insanity  of 
either  does  not  change  the  general  rule  as  to  their 
rights  and  liabilities  meanwhile.  The  husband's 
liability,  upon  separation,  for  the  support  of  a 
pauper  wife  is  not  the  same  in  all  the  states ;  owing 
ordinarily  to  the  difference  in  their  poor  laws.  In 
New  York,  the  wife  of  a  husband  able  to  support 
her   is   not   a    "pauper"   within    the   statute;    and 

313 


WOMAN  UNDER  THE  LAW 

although  he  unjustifiably  turns  her  out,  the  super- 
intendents of  the  poor  cannot  recover  of  him  for 
necessaries  furnished  her.  In  Massachusetts  the 
law  is  otherwise.  In  Vermont  he  is  liable  for  not 
over  one  year's  support.  In  Ohio  the  husband  is  not 
liable  for  expenses  of  a  treatment  for  his  insane  wife 
in  the  state  hospital.     In  West  Virginia,  otherwise. 

In  many  states,  a  statutory  provision  is  made 
for  compulsory  support  of  the  w^ife  by  a  husband 
unjustifiably  abandoning  her.  The  Massachusetts 
statute  affords  a  good  illustration.  "When  a  hus- 
band fails,  without  just  cause,  to  furnish  suitable 
support  for  the  wife,  or  has  deserted  her,  or  when 
the  w^ife,  for  justifiable  cause,  is  actually  living 
apart  from  her  husband,  the  probate  court  may,  by 
its  order  on  the  petition  of  the  wife,  or,  if  she  is 
insane,  on  the  petition  of  her  guardian  or  next 
friend,  prohibit  the  husband  from  imposing  any 
restraint  on  her  personal  liberty  for  such  time  as  the 
court  shall  in  such  order  direct,  or  until  the  further 
order  of  the  court  thereon;  and  the  court  may, 
upon  the  application  of  the  husband  or  w^ife  or  of 
her  guardian,  make  such  further  order  as  it  deems 
expedient  concerning  the  support  of  the  wife,  and 
the  care,  custody,  and  maintenance  of  the  minor 
children  of  the  parties,  and  may  determine  with 
which  of  the  parents,  the  children  or  any  of  them 
shall  remain;  and  may,  from  time  to  time,  after- 
wards, on  a  similar  application,  revise  and  alter  such 
order,  or  make  a  new  order  or  decree,  as  the  cir- 
cumstances of  the  parents  or  the  benefit  of  the  chil- 
dren may  require." 

This  statute  is  constitutional,  although  it  makes 
no  provision  for  trial  by  jury.  The  husband,  though 
under  guardianship  as  a  spendthrift,  may  be  prohib- 
ited from  restraining  the  wife's  liberty.  The  pro- 
bate court  cannot,  w^ithout  consent,  order  payment 

314 


SEPARATION    BY    AGREEMENT 

of  a  sum  in  gross  for  all  the  future  support  of  the 
wife.  The  fact  that  the  husband  has  deserted  his 
wife  and  gone  into  another  state,  does  not  preclude 
the  statutory  award  for  separate  maintenance.  The 
petition  may  be  granted,  although  the  living  apart 
was  only  for  a  day.  The  fact  that  she  has  executed 
a  release  of  all  claim  for  support,  and  that  the  con- 
sideration has  been  received  by  her,  is  no  bar  to  her 
petition.  Where  an  attachment  has  been  ordered 
for  separate  maintenance,  successive  executions 
may  be  issued  thereon. 

Massachusetts  also  affords  a  good  representa- 
tive of  statutes  declaring  such  abandonment  a 
criminal  offence:  "w^hoever  unreasonably  neglects 
to  provide  for  the  support  of  his  wife  or  minor  child 
shall  be  punished  by  fine  not  exceeding  twenty  dol- 
lars, or  imprisoned  in  the  house  of  correction  not 
exceeding  six  months;"  the  fine,  at  the  discretion 
of  the  court,  to  go  to  the  town,  city,  society  or  per- 
son actually  furnishing  the  support.  In  a  prosecu- 
tion thereunder,  the  complainant,  to  rebut  the  hus- 
band's charge  that  she  had  failed  in  her  marital  duty, 
was  permitted  to  adduce  a  decree  of  the  probate 
court  for  her  separate  maintenance,  also  a  decree 
dismissing  his  libel  for  divorce. 

In  England,  a  wife  w^rongfully  deserted  by  her 
husband,  may  have  an  order  for  protection  of  her 
property;  and  upon  judicial  separation,  have  the 
rights  of  a  feme  sole. 

The  husband  is  not  bound  to  maintain  his 
wife's  children  by  a  former  husband  unless  he  has 
taken  them  into  the  family. 

In  Connecticut,  any  husband  neglecting, 
without  good  cause,  to  support  his  wife,  may  be 
sentenced  to  hard  labor  for  not  more  than  sixty 
days,  or  compelled  to  give  bond.     Upon  a  prosecu- 

315 


WOMAN  UNDER  THE  LAW 

tion  for  failure  to  support,  her  adultery  is  a  sufficient 
defence. 

In  Delaware,  a  husband  deserting  his  wife, 
without  making  proper  provision  for  her  support,  is 
liable  to  have  his  property  sequestered  by  the  board 
of  trustees  of  the  poor. 

In  Florida,  in  case  of  his  cruelty  or  desertion, 
the  court  will  intercept  her  estate  in  his  hands,  or 
remove  him  as  trustee. 

In  Georgia,  if  any  man  shall  whip,  beat,  or 
otherwise  cruelly  maltreat  his  wife,  he  shall  be 
deemed  guilty  of  a  misdemeanor,  and  the  wife  shall 
be  a  competent  witness  against  him.  The  statute, 
rendering  him  liable  for  her  support,  is  like  that  of 
California.  She  may,  without  applying  for  a 
divorce,  maintain  an  action  against  him  for  intoler- 
able cruelty. 

In  Indiana,  the  wife  by  an  ordinary  suit  against 
the  husband,  may  obtain  support  when  he  has 
deserted  her  without  cause  and  without  provision, 
or  has  been  convicted  of  a  felony  and  imprisoned, 
or  is  an  habitual  drunkard,  or  refuses  to  live  with 
her  in  the  conjugal  relation,  by  joining  himself  to  a 
sect,  the  rules  of  which  require  such  renunciation. 

The  Indiana  act  for  relief  of  a  "deserted"  wife, 
does  not  apply  to  a  deserting  one.  An  omission  in 
the  complaint  to  allege  that  his  deserting  her  w^as 
without  cause,  is  cured  by  verdict.  His  unjus- 
tifiably deserting  her  is  punishable  by  fine. 

In  Iowa,  on  abandonment  by  either  and  ab- 
sence from  the  state  for  one  year,  w^ithout  provision, 
or  imprisonment  for  a  year  or  more,  the  abandoned 
spouse  may,  by  ordinary  action  in  the  district  or  cir- 
cuit court,  become  authorized  to  manage,  control, 
sell  and  encumber  the  property  of  the  husband  or 
wife,  for  the  support  of  the  family,  and  for  the  pur-^ 
pose  of  paying  debts. 

316 


SEPARATION    BY    AGREEMENT 

In  Kansas,  the  wife  may  obtain  alimony  from 
the  husband  without  a  divorce,  in  an  action  brought 
for  that  purpose  in  the  district  court,  for  any  of  the 
causes  for  which  a  divorce  may  be  granted. 

In  Kentucky,  where  the  husband  abandons  the 
wife,  or  fails  to  make  sufficient  provision  for  her 
maintenance,  or  where  he  is  confined  in  the  peniten- 
tiary for  an  unexpired  term  of  more  than  one  year, 
the  wife,  may,  by  action  in  equity,  be  empowered  to 
use,  enjoy  and  sell,  for  her  own  benefit,  any  prop- 
erty she  may  acquire  or  may  have  acquired;  to 
make  contracts,  sue  and  be  sued ;  may  sell  and  con- 
vey by  her  own  deed,  etc.  But  the  husband,  upon 
manifesting  a  proper  disposition  again  to  live  with 
his  wife  and  make  suitable  provision  for  her  or  upon 
his  release  from  the  penitentiary,  by  his  petition  in 
such  action  may,  in  the  discretion  of  the  court,  have 
all  or  part  of  said  powers  set  aside,  and  be  permitted 
to  take  upon  himself  the  prosecution  or  defence  of 
any  pending  action  against  her. 

In  Louisiana,  their  voluntary  separation  does 
not  prevent  their  acquisitions  from  falling  into  the 
community. 

In  Maine,  a  wife  whose  husband  has  aban- 
doned her  and  left  the  state,  or  is  in  execution  of 
sentence  in  the  state  prison,  may  be  authorized  by 
the  Supreme  Judicial  Court  to  contract  as  a  feme 
sole. 

In  Michigan,  an  abandoned  wife  may,  in  the 
Probate  Court,  obtain  relief  like  that  in  Massachu- 
setts. 

In  Minnesota  the  support  may  be  ordered, 
with  or  without  a  decree  of  separation. 

In  New  Hampshire,  the  wife  may,  on  abandon- 
ment, in  the  Supreme  Court,  obtain  relief  like  that 
afforded  by  the  Probate  Court  in  Massachusetts. 

In  New  Jersey,  a  husband  neglecting  to  sup- 

317 


WOMAN  UNDER  THE  LAW 

port  his  family,  may  be  compelled  to  do  so  by  the 
overseers  of  the  poor  as  a  "disorderly  person." 
Equity  will  decree  a  sale  of  property  of  a  neglected 
wife  living  separate  and  she  may  sell  as  if  sole. 

In  New  York,  where  a  husband  leaves  his  wife 
or  child  a  public  charge,  his  property  may  be  seized 
by  the  superintendent  of  the  poor  or  other  proper 
officer,  and  on  confirmation  of  the  warrant  by  the 
court  of  sessions,  may  be  sold,  and  the  proceeds  be 
applied  to  pay  taxes,  liens,  repairs  and  insurance, 
and  the  residue  for  the  support  and  care  of  the  wife 
and  child.  If  she  has  unjustifiably  left  him,  and  he 
offers  to  maintain  her  at  a  place  of  her  own  selec- 
tion, the  order  will  not  be  granted.  Circumstances 
to  justify  a  decree  of  maintenance  must  be  such  as 
to  justify  a  decree  of  separation. 

In  North  Carolina,  a  husband  deserting  his 
wife  and  living  in  adultery,  forfeits  all  his  rights 
to  her  personal  property,  or  to  property  settled  upon 
her  at  the  marriage.  A  w^ife  eloping  with  an  adul- 
terer, and  not  living  with  her  husband  at  his  death 
loses  all  right  of  dower. 

In  Ohio,  if  the  husband  neglects  to  provide 
for  the  w^ife,  any  other  person  may  in  good  faith 
supply  her  w^ith  necessaries,  and  recover  the  reason- 
able value  thereof  from  the  husband,  unless  she  has 
unjustifiably  abandoned  him  and  does  not  offer 
to  return. 

In  Oklahoma,  if  the  husband  has  deserted  the 
wife,  or  is  imprisoned,  she  may  prosecute  and  de- 
fend suits  in  his  name. 

In  Pennsylvania,  if  a  husband  neglects  to 
provide  for  his  wife,  she  may  avail  herself  of  the 
sole  trader  act.  Any  husband,  who,  for  one  year 
before  his  wife's  death,  has  wilfully  neglected  to 
provide  for  her  or  has  deserted  her,  forfeits  all  claim 
or  right  to  her  real  or  personal  estate,  after  her  death 

318 


SEPARATION    BY    AGREEMENT 

as  tenant  by  the  curtesy  or  under  the  intestate  laws. 
To  establish  her  claim  on  his  estate  for  her  support, 
she  must  show  that  her  withdrawal  was  not  caused 
by  her  own  misconduct.  In  a  desertion  case,  the 
allowance  may  be  increased  or  diminished,  or  re- 
voked according  to  the  changed  relations  of  the 
parties.  A  deserting  husband's  right  in  his  wife's 
estate  is  not  restored  by  his  merely  having  contrib- 
uted to  her  support.  Her  deserting  him  and  living 
in  adultery,  if  condoned,  does  not  deprive  her  of 
her  rights  as  distributee  in  his  estate.  Where,  in 
fulfillment  of  their  agreement  of  separation  the  hus- 
band had  given  her  certain  cash  and  bank  stock,  it 
was  held  that  he  was  not  liable  to  prosecution  for 
failure  to  support  her. 

In  Rhode  Island,  a  wife  entering  the  state 
alone,  may,  after  so  continuing  one  year  acquire  the 
rights  of  a  feme  sole. 

In  South  Carolina,  if  a  wife  leave  her  husband 
and  go  away,  and  continue  with  her  advoutrer,  she 
shall  be  barred  forever  of  action  to  demand  her 
dower.  A  married  w^oman  under  the  laws  of  South 
Carolina  has  the  right  to  purchase  any  species  of 
property  in  her  ow^n  name,  and  to  take  proper  legal 
conveyances  therefor  and  to  convey  and  be  con- 
tracted with  as  if  she  w^ere  unmarried  provided  her 
husband  shall  not  be  liable  for  her  debts,  except  for 
her  necessary  support. 

In  Tennessee,  if  a  husband's  cruelty  has  com- 
pelled his  wife  to  leave  him,  she  may  have  a  decree 
for  rents  and  profits  of  land  in  his  possession  ac- 
quired by  her  since  the  marriage. 

In  Texas,  a  w^ife  suing  for  a  divorce,  may,  on 
oath  that  the  husband  will  w^aste  either  her  separate 
property,  or  their  common  property,  or  the  re- 
venues, may  obtain  a  writ  of  sequestration,  or  an 
injunction.    His  deserting  her  and  living  in  adultery 

319 


WOMAN  UNDER  THE  LAW 

does  not  deprive  him  of  his  interest  in  the  com- 
munity property,  nor  confer  on  her  any  rights  ex- 
cept of  management  and  if  necessary  of  disposal 
thereof.  The  wife  of  a  deserting  husband,  not 
suing  for  a  divorce,  cannot  compel  him  to  support 
her. 

In  Vermont,  a  married  woman  whose  husband 
deserts  her,  or  who  from  intemperance  or  other 
cause  becomes  incapacitated  or  neglects  to  provide 
for  his  family,  may  in  her  name  make  contracts  for 
her  labor  and  the  labor  of  her  minor  children,  shall 
be  entitled  to  her  and  their  wages,  and  in  her  own 
name  may  sue  for  and  recover  them.  And  the 
county  court  may  invest  her  with  the  rights  of  a 
feme  sole;  may  authorize  her  to  sell  her  realty  and 
his  personalty  for  her  support;  and  the  chancellor 
may  give  her  sole  use  of  his  realty;  this  may  also 
be  done  in  case  of  his  imprisonment.  The  county 
court  may  prohibit  a  deserting  husband  from  re- 
straining his  wife's  liberty.  His  failure  to  support 
her,  after  notification  by  the  overseer  of  the  poor,  is 
a  misdemeanor  punishable  by  fine  of  not  more  than 
twenty  dollars. 

In  Virginia,  by  wilfully  deserting  her  until  her 
death,  he  forfeits  all  interest  in  her  separate  or  other 
estate  as  tenant  by  the  curtesy,  distributee  or  other- 
wise. He  is  not  liable  for  her  ante-nuptial  debts  in- 
curred in  respect  to  her  separate  estate.  Since  the 
married  woman's  act,  the  husband's  curtesy  initiate 
in  his  wife's  lands  cannot  be  sold  to  pay  his  debts. 

In  West  Virginia,  a  decree  of  separation  may 
provide  that  the  parties  be  perpetually  separated 
and  protected  in  their  persons  and  property. 

In  Wisconsin,  whenever  the  husband  or  wife 
is  about  to  abscond  or  he  refuses  to  support  her, 
the  mayor  of  the  city,  president  of  the  village  or 
supervisors  of  the  town  may  issue  a  w^arrant,  against 

320 


SEPARATION    BY    AGREEMENT 

his  or  her  goods,  and  on  confirmation  by  the  county 
court,  sufficient  shall  be  sold  at  auction  for  the 
maintenance  of  the  wife.  The  property  may  be 
restored  on  the  giving  of  bond. 

In  Wyoming,  pending  her  suit  for  divorce,  the 
court  may  prohibit  him  from  restraining  her  per- 
sonal liberty.  He  may  also  be  required  to  give 
security  for  obedience  to  the  orders  of  the  court  as 
to  his  property,  but  he  is  not  liable  for  her  ante- 
nuptial debts. 


321 


CHAPTER  XII. 
DIVORCE 

Divorce,  is  the  partial  or  total  dissolution  of  a 
marriage  by  the  state.  The  relation  of  two  married 
persons  to  each  other  is  not  a  mere  personal  rela- 
tion depending  on  their  will,  but  a  status, — a  legal 
condition  established  by  laws, — which  the  state  has 
full  pow^er  to  create,  change  and  abrogate. 

The  relation  is  not  a  contract,  and  it  is  not  a 
vested  right ;  and  a  divorce,  therefore,  does  not  fall 
within  prohibitions  against  the  impairment  of  the 
obligation  of  contract,  or  the  divesting  of  vested 
rights.  A  divorce  necessarily  changes  the  property 
rights  of  the  parties,  but  this  they  are  presumed  to 
have  contemplated.  Still,  it  cannot  divest  such 
rights  as  have  vested,  for  instance,  through  a  mar- 
riage settlement.  But  it  destroys  mere  inchoate 
rights,  such  as  dower,  and  rights  dependent  on  the 
continuance  of  coverture;  and  generally  restores  to 
each  of  the  parties  his  or  her  property.  Thus  it  is 
that  the  state  can,  on  any  terms  it  pleases,  dissolve 
the  marriage  of  any  persons  over  whose  domestic 
condition  it  has  jurisdiction. 

In  the  United  States  of  America  the  "state" 
means  the  local  government  of  each  state,  as  the 
central  government  has  no  jurisdiction  over  the 
domestic  condition  of  the  inhabitants  of  the  several 
states;  the  several  states  can  grant  divorces,  the 
United  States  cannot. 

The  state  can  dissolve  a  marriage  through  its 
legislative     department     by    special     act — such    a 

322 


DIVORCE 

divorce  being  called  a  legislative  divorce ;  or  through 
its  judicial  department — such  a  divorce  being  called 
a  judicial  divorce. 

A  legislative  divorce  is  a  divorce  granted 
directly  by  the  legislature,  and  a  divorce  granted  by 
a  court  under  a  special  act  of  the  legislature  must 
also  be  so  regarded. 

Some  courts  have  held  that  a  divorce  is  in  its 
nature  purely  a  judicial  act,  but  parliamentary 
divorces  were  the  earliest  divorces  in  England,  and 
legislative  divorces  were  granted  in  the  earliest  days 
in  some  of  the  United  States.  As  a  rule,  a  state  may 
grant  a  divorce  unless  expressly  or  impliedly  pro- 
hibited by  its  constitution. 

The  extra-territorial  validity  of  such  a  divorce 
and  its  effect  depend  generally  on  the  same  prin- 
ciples as  govern  the  validity  and  effect  of  judicial 
divorces.  Though  a  statute,  it  is  in  the  nature  of 
a  decree;  the  marriage  status  is  destroyed;  the 
woman  cannot  claim  any  further  rights  in  the  man's 
property;  nor  the  man  in  the  w^oman's;  and  the 
validity  of  the  divorce  does  not  depend  on  the 
parties  having  had  notice.  This  subject  is  now  of 
little  importance  as  legislative  divorces  are  in  a  great 
majority  of  the  states  prohibited  by  the  state  con- 
stitution; therefore,  the  remainder  of  this  chapter 
will  treat  only  of  judicial  divorces. 

A  judicial  divorce  is  a  decree  of  a  court,  par- 
tially or  wholly  dissolving  a  marriage.  Such  a  de- 
cree must  be  carefully  distinguished  from  a  decree 
of  nullity;  the  first  dissolves  a  valid  marriage,  the 
second  declares  that  a  valid  marriage  never  existed. 
The  fact  that  the  w^ord  "divorce"  has  been  used  to 
include  both  classes  of  decrees  has  led  to  the  most 
perplexing  confusion. 

A  judicial  divorce  may  be  absolute  or  limited. 
An  absolute  divorce  is  usually  called  a  divorce  a 

323  ~ 


WOMAN  UNDER  THE  LAW 

vinculo  matrimonii,  or  from  the  bonds  of  matri- 
mony. The  earliest  form  of  judicial  divorce  was  a 
limited  divorce — the  divorce  a  mensa  et  thoro,  or 
separation  from  bed  and  board;  this  divorce  was 
granted  in  England  by  the  ecclesiastical  courts  when 
no  absolute  divorces  were  granted  except  by  par- 
liament. Prior  to  1 858  an  absolute  judicial  divorce 
was  unknown. 

In  the  United  States  both  classes  of  divorces 
are  known,  though  divorces  a  mensa  et  thoro  are 
growing  less  and  less  usual. 

Other  forms  of  limited  divorces  have  been 
established  in  many  states,  such  as  divorces  con- 
taining prohibition  against  the  marriage  of  the 
guilty  party  during  the  lifetime  of  the  other  or  for  a 
specified  time,  or  w^ithout  the  consent  of  the  court, 
or  with  the  particeps  criminis. 

As  will  be  seen  in  the  discussion  of  the  differ- 
ent branches  of  this  subject,  a  decree  of  divorce  may 
be  void — a  mere  nullity,  and  so  regarded  in  any 
court ;  or  voidable — one  that  can  be  set  aside  on  the 
application  of  a  proper  party  to  the  court  which 
granted  it. 

A  divorce  may  also  be  valid  as  to  one  of  the 
parties  but  not  as  to  the  other;  may  afiFect  property 
in  one  place,  but  not  in  another;  may  be  given  full 
effect  in  one  state,  and  no  effect  in  another;  or  may 
be  wholly  valid,  and  be  so  considered  everyAvhere. 

The  validity  of  a  divorce  depends  on  the  juris- 
diction of  the  court  w^hich  grants  it,  and  on  its  being 
obtained  regularly  and  without  fraud. 

A  decree  declaring  a  pretended  marriage  void 
ab  initio,  or  avoiding  a  voidable  marriage,  is  prop- 
erly called  a  decree  of  nullity,  though  not  infre- 
quently termed  a  divorce  both  in  judicial  opinions 
and  in  statutes.     It  will  be  necessary  to  discuss  both 

324 


DIVORCE 

decrees  incidentally  in   this  chapter    though    they 
have  been  fully  treated  in  the  chapter  on  Marriage. 

In  determining  what  courts  can  dissolve  a  par- 
ticular marriage,  one  must  ascertain,  first,  what 
state  has  the  necessary  power  and  authority  over 
the  parties  and  their  status;  and  secondly,  to  what 
court  in  that  state  that  right  and  power  has  been 
delegated.  In  ascertaining  this,  one  may  have  to 
consider  the  principles  of  international  law  and 
comity,  the  "full  faith  and  credit  clause"  of  the 
United  States  Constitution,  and  the  particular  stat- 
utes of  the  state  where  the  suit  is  to  be  brought. 

Jurisdiction  at  various  times  and  in  different 
states,  has  been  made  to  depend  upon  the  domicile 
or  residence  of  the  party  or  parties  at  the  time  of 
their  marriage,  the  commission  of  the  offense,  or 
the  time  of  bringing  the  suit;  the  place  where  the 
marriage  took  place,  or  the  offense  w^as  committed; 
and  the  state  to  which  the  parties  owe  allegiance. 
But  generally  speaking,  the  w^hole  question  is  one 
of  the  domicile  of  the  parties. 

Colonists  may  carry  with  them  laws,  but  not 
courts ;  and  therefore  the  ecclesiastical  courts,  w^hich 
alone  in  England  could  grant  divorces,  were  not  im- 
ported into  this  country,  and  the  jurisdiction  of  such 
courts  can  be  obtained  only  by  statute. 

The  United  States  courts  have  no  jurisdiction 
given  by  statute,  nor  have  they  any  ecclesiastical 
jurisdiction  and  so,  although  in  the  exercise  of  their 
chancery  jurisdiction  they  may,  like  other  equity 
courts,  entertain  a  suit  for  alimony  of  a  wife  against 
her  husband,  they  have  no  divorce  jurisdiction. 
Nor  could  Congress  vest  such  jurisdiction  in  the 
United  States  courts;  for,  as  has  been  shown,  mar- 
riage is  not  a  national  matter,  but  a  domestic  institu- 
tion within  the  exclusive  control  of  the  several 
states. 

325 


WOMAN  UNDER  THE  LAW 

In  England  there  is  now  a  special  divorce  court 
invested  by  statute  with  exclusive  divorce  jurisdic- 
tion. 

In  each  of  the  United  States,  excepting  South 
Carolina,  divorce  jurisdiction  is  given  by  statute  to 
certain  state  courts.  Such  jurisdiction  is  not  neces- 
sarily given  by  express  words. 

When  certain  causes  for  a  divorce  are  named 
by  a  statute,  but  divorce  jurisdiction  is  not  given  by 
name  to  any  particular  court,  a  provision  giving 
jurisdiction  in  all  "civil  cases  both  at  law  and  in 
equity"  to  certain  courts  includes  divorce  suits,, 
although  such  suits  are  strictly  not  suits  at  law  or  in 
equity,  but  are  suits  sui  generis. 

When  divorce  jurisdiction  is  vested  in  certain 
courts,  therefore,  but  no  causes  for  divorce  are 
named,  such  jurisdiction  covers  the  canon  and  com- 
mon law  causes ;  but  if  certain  causes  are  named  all 
others  are  excluded  by  implication.  State  statutes 
are  usually  framed  on  the  theory  that  divorce  juris- 
diction depends  upon  the  domicile,  and  on  the  com- 
plainant's domicile  in  particular. 

If  the  court  has  given  jurisdiction  it  must  grant 
the  divorce,  although  its  decree  may  have  no  extra- 
territorial effect.  But  the  statutes  will  be  construed, 
if  possible,  so  as  to  prevent  any  confliction  with  the 
provisions  of  the  United  States  constitution  or  of 
international  law;  in  other  respects  they  will  be 
construed  strictly,  but  so  as  to  fairly  carry  out  their 
spirit  and  intendment. 

Every  state  has  the  right  to  regulate  its  ow^n 
domestic  policy,  to  determine  the  status  of  its  ow^n 
citizens,  and  to  choose  for  itself  the  terms  and  con- 
ditions under  which  its  own  courts  shall  grant 
divorces;  and  a  divorce  granted  in  accordance  w^ith 
its  laws  must  be  valid  within  its  own  territory.  But 
no  state  has  primarily  the  right  to  push  its  domestic 

326 


DIVORCE 

policy  beyond  its  boundaries  and  into  other  states, 
or  to  dissolve  the  marriage  or  change  the  domestic 
status  of  persons  belonging  to  other  states ;  and  the 
acts  of  one  state  have  force  and  authority  in  other 
states  only  by  the  consent  of  such  other  state — that 
is  to  say,  by  the  comity  of  nations  or  international 
law,  or  by  virtue  of  some  paramount  law^,  such  as 
the  United  States  Constitution,  or  a  treaty  between 
nations.  But  before  considering  the  effect  of  the 
United  States  Constitution  and  of  international  law 
the  nature  of  the  proceedings  for  divorce  must  be 
determined. 

A  suit  for  divorce  is  not  a  mere  personal  suit, 
like  a  suit  on  a  contract,  or  for  a  tort;  nor  is  it  a 
criminal  prosecution;  but  it  is  a  proceeding  sui 
generis,  involving  not  only  persons — the  husband 
and  wife,  but  a  thing — their  marriage.  It  is  thus  a 
proceeding  partly  in  personam  and  partly  in  rem. 
Jurisdiction  is  acquired  in  one  of  two  modes;  first, 
as  against  the  person  of  the  defendant,  by  the  ser- 
vice of  process;  or,  secondly,  by  a  procedure 
against  the  property  of  the  defendant  within  the 
jurisdiction  of  the  court.  In  the  latter  case  the  de- 
fendant is  not  personally  bound  by  the  judgment 
beyond  the  property  in  question.  The  position  of 
husband  and  wife,  as  husband  and  wrife,  depends 
upon  the  marriage  laws  under  which  they  live,  and 
is  called  their  status.  So  far  as  a  divorce  suit  is  to 
affect  this  status,  it  is  to  change  a  thing  independent 
of  the  parties,  and  is  a  proceeding  not  against  the 
parties  in  personam,  but  against  their  status — in 
rem.  Jurisdiction  to  pass  a  decree  in  rem  exists 
over  anything  fixed  in  the  state,  and  notice  by 
publication  or  otherwise  to  the  parties  concerned 
is  rather  to  give  them  every  chance  and  to  exclude 
suspicions  of  secrecy  and  fraud  than  to  meet  a 
necessity  of  service  or  summons.     Jurisdiction  to 

327 


WOMAN  UNDER  THE  LAW 

pass  a  decree  in  personam  depends,  on  the  other 
hand,  entirely  on  the  courts  having  authority  over 
the  person,  either  by  a  regular  summons  or  by  his 
personal  voluntary  appearance  in  the  suit.  So  far 
as  a  divorce  suit  relates  to  the  status  of  the  parties 
it  is  a  proceeding  in  rem,  and  a  proceeding  against 
two  distinct  things — the  status  of  the  husband  and 
the  status  of  the  wife.  So  far  as  it  relates  to  alimony, 
or  costs,  or  a  prohibition  against  marriage,  it  is  a 
proceeding  in  personam.  So  far  as  it  relates  to  chil- 
dren, it  seems  to  be  a  proceeding  in  rem, — the  chil- 
dren must  be  in  court. 

By  the  United  States  Constitution  the  judicial 
proceedings  of  one  state  are  given  full  effect  in  all 
the  states ;  full  faith  and  credit  shall  be  given  in  each 
state  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  state,  according  to  the  con- 
stitution. And  the  Congress  may  by  general  laws 
prescribe  the  manner  in  which  such  acts,  records, 
and  judicial  proceeding  shall  be  proved,  and  the 
effect  thereof.  And  the  said  records  and  judicial 
proceedings,  authenticated  as  aforesaid,  shall  have 
such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or 
usage  in  the  courts  of  the  state  from  whence  the 
said  records  are  or  shall  be  taken.  It  would  have  led 
to  absurdity  if  this  had  been  held  to  mean  that  any 
judgment  that  one  state  should  see  fit  to  authorize 
should  be  valid  not  only  in  such  state  but  in  all  the 
states;  for  this  would  have  left  each  state  at  the 
mercy  of  all  the  others.  So  it  has  been  frequently 
decided  that  this  does  not  mean  that  any  divorce 
valid  where  granted  is  valid  everywhere,  but  that  it 
applies  only  to  divorces  granted  by  courts  which 
had  jurisdiction  over  the  parties  and  the  subject 
matter.  More  accurately,  it  applies  to  divorces 
granted  by  a  court  w^hich  had  jurisdiction  over  the 

328 


DIVORCE 

parties  and  their  marriage  status  or  to  such  portion 
of  the  decree  as  being  in  rem  acts  upon  things  within 
the  control  of  the  state  where  the  decree  is  passed, 
and  as  being  in  personam,  acts  upon  a  person  duly 
summoned,  or  voluntarily  appearing.  Thus,  if  both 
parties  are  domiciled  out  of  the  state  where  the 
divorce  is  granted,  such  state,  having  no  control  of 
their  status,  and  therefore  no  jurisdiction  over  the 
thing  proceeded  against,  in  granting  the  divorce 
commits  an  act  which  no  other  state  is,  under  the 
United  States  Constitution,  bound  to  recognize, 
although  there  was  full  jurisdiction  over  the  parties 
by  their  voluntary  appearance  in  the  case.  If  this 
were  not  true,  a  husband  and  wife  could  journey  to 
any  state  that  pleased  them  and  there  get  a  divorce, 
and  the  laws  of  their  own  state  would  be  valueless. 
Likewise,  as  there  are  both  the  status  of  the  husband 
and  the  status  of  the  wife  which  the  divorce  can 
affect  a  case  can  easily  arise  w^here  a  court  will  have 
jurisdiction  over  one  status  and  not  over  the  other, 
and  where  the  decree,  as  far  as  other  states  are  con- 
cerned, will  affect  only  the  status  of  one  of  the 
parties.  If  the  court  has  jurisdiction  over  the  status 
of  both  of  the  parties,  the  decree  must  be  recognized 
in  all  the  states,  although  one  of  the  parties  was  not 
summoned  and  did  not  appear.  But  such  portions 
of  the  decree  as  are  in  personam  will  not  have  full 
effect  unless  the  person  has  been  duly  summoned 
or  has  appeared. 

The  rules  of  international  law  are  neither  as 
specific  nor  as  binding  as  the  "full  faith  and  credit" 
clause  of  the  United  States  Constitution ;  but  under 
them  generally,  as  under  that  clause,  a  divorce  suit 
is  regarded  as  a  proceeding  against  the  status  of  the 
parties,  partly  in  personam  and  partly  in  rem.  The 
marriage  state  is  recognized  as  a  status,  and  to  the 
country  which  has  control  over  that  status,  which, 

329 


WOMAN  UNDER  THE  LAW 

as  will  hereafter  be  shown,  is  the  country  where  the 
parties  are  domiciled,  and  to  that  country  only,  is 
given  the  right  to  dissolve  the  marriage  and  change 
the  status.  But  no  country  will  consent  to  recognize 
a  proceeding  which  is  contrary  to  its  views  of  public 
policy  and  morality,  and  will  recognize  even  such 
divorces  as  the  United  States  Constitution  would 
not  compel  it  to  recognize,  if  they  were  granted  in  a 
manner  which  it  itself  regards  as  just  and  proper. 

A  person's  domicile  is  the  place  or  country 
either  (  1  )  in  which  he  in  fact  resides  with  the  inten- 
tion of  residence;  or  (2)  in  which  having  so  resided, 
he  continues  actually  to  reside,  though  no  longer 
retaining  the  intention  of  residence;  or  (3)  with 
regard  to  which,  having  so  resided  there,  he  retains 
the  intention  of  residence,  though  in  fact  he  no 
longer  resides  there.  It  is  in  fact  his  permanent 
home.  Such  is  domicile  by  the  unwritten  law;  un- 
der divorce  statutes  it  is  frequently  called  "resi- 
dence." 

Divorce  statutes  frequently  require  the  com- 
plainant to  have  been  a  "resident"  of  the  state  for  a 
certain  time.  Under  such  statutes  "residence" 
means  domicile, — though  distinctions  have  some- 
times been  made, — and  the  length  of  residence  is 
required  as  a  precaution  against  a  pretended  resi- 
dence and  fraud.  The  residence  under  such  statutes 
must  be  actual,  not  merely  w^ished  for  or  intended ; 
it  must  be  bona  fide,  not  taken  for  the  purpose  of 
divorce  to  be  given  up  afterwards;  it  must  be  per- 
manent, not  a  mere  visit.  The  residence  must  exist 
at  the  time  the  suit  is  brought,  though  not  neces- 
sarily at  the  time  of  the  trial;  and  it  must  continue 
for  the  statutory  time.  A  residence  or  domicile  is 
not  given  up  or  interrupted  by  temporary  absences 
for  pleasure,  business,  or  health. 

In  the  United  States  at  least,  for  the  point  does 

330 


DIVORCE 

not  seem  fully  settled  in  England,  husband  and  wife 
may  have  distinct  and  separate  domiciles,  so  far  as 
divorce  jurisdiction  is  concerned.  Ordinarily  the 
husband  has  the  right  to  fix  the  matrimonial  home; 
he  may  move  as  often  as  he  pleases,  and  his  wife 
must  follow  or  she  deserts  him;  and  whether  she 
follows  him  in  fact  or  not,  her  domicile  in  law  fol- 
lows his  and  is  determined  by  his  residence.  But 
there  are  exceptions;  if  the  husband  and  wife  are 
divorced  a  mensa  et  thoro,  the  law  secures  to  them 
separate  homes,  and  the  wife  has  her  separate 
domicile;  if  he  is  guilty  of  conduct  which  justifies 
her  in  leaving  him,  she  must  have  the  right  to  live 
in  a  different  place  and  to  have  her  own  domicile; 
and  as  she  has  the  right  to  separate  from  him  when- 
ever she  has  a  cause  for  divorce  against  him,  in  all 
such  cases  she  may  have  her  separate  domicile. 
Authorities  have  gone  further,  and  the  Supreme 
Court  of  the  United  States  has  held  that  a  wife  may 
have  her  separate  domicile  whenever  this  is  just 
and  proper,  while  other  cases  have  gone  far  towards 
holding  that  in  all  divorce  cases  husband  and  wife 
may  have  distinct  domiciles.  The  identity  of  the 
wife's  domicile  w^ith  that  of  her  husband  is  after  all 
but  a  legal  fiction,  and  a  wronged  wife  who  is  not 
herself  in  fault  may  proceed  against  her  husband  in 
the  place  where  she  is  actually  domiciled.  But  if 
she  is  in  fault,  by  the  weight  of  the  authorities,  her 
domicile  remains  his,  and  the  courts  of  his  domicile 
have  jurisdiction  over  her  marriage  status  as  well. 
If  she  is  not  in  fault,  but  has  a  cause  for  divorce 
against  him  and  is  actually  domiciled  in  another 
state  she  cannot,  by  virtue  of  the  legal  fiction  that 
his  domicile  is  hers,  sue  him  in  the  courts  of  his 
domicile  as  though  she  were  residing  in  the  same 
state  with  him.  And  yet  this  is  contradicted  by 
other  authorities;  and  if  a  wife  is  sued  in  her  hus- 

331 


WOMAN  UNDER  THE  LAW 

band's  domicile  she  may  file  a  cross-bill  as  answer 
though  she  be  in  fact  domiciled  in  another  state. 

Jurisdiction  to  grant  a  divorce  and  dissolve  the 
marriage  of  any  person  is,  as  has  been  shown, 
whether  in  the  theory  of  divorce  statutes  or  under 
the  "full  faith  and  credit"  clause  of  the  United 
States  Constitution,  or  under  the  principles  of  inter- 
national law,  vested  in  that  state  w^hich  has  control 
of  the  status  of  the  person  in  question.  The  status 
of  marriage  is  the  legal  position  of  a  married  person 
as  such  in  the  community  or  in  relation  to  the  com- 
munity;— w^hich  community  is  it  which  is  in- 
terested in  such  relation?  None  other  than  the  com- 
munity of  which  he  is  a  member;  that  is,  the  com- 
munity with  w^hich  he  is  living,  so  as  to  be  one  of 
the  families  of  it.  But  that  is  in  fact  the  commu- 
nity in  which  he  is  living  at  home,  with  the  intent 
that  among  or  in  it  should  be  the  home  of  his  mar- 
ried life.  That  is  the  place  of  his  domicile.  So 
that  generally  speaking,  divorce  jurisdiction  de- 
pends upon  domicile.  The  only  fair  and  satisfac- 
tory rule  to  adopt  in  the  matter  of  jurisdiction  is  to 
insist  upon  the  parties  in  all  cases  referring  their 
matrimonial  differences  to  the  courts  of  the  country 
where  they  are  domiciled.  It  is  both  just  and  reason- 
able that  the  differences  of  married  people  should  be 
adjusted  in  accordance  with  the  laws  of  the  coun- 
tries to  which  they  belong,  and  dealt  with  by  the 
tribunals  which  alone  can  administer  these  laws. 
Every  state  makes  its  laws  for,  and  has  the  right  to 
control,  the  domestic  status  of  those  w^ho  make 
their  home  in  it.  When  both  parties  are  domiciled 
in  the  state  where  their  divorce  is  granted  there  is 
no  difficulty — the  divorce  is  valid  every"where.  In 
cases  where  the  wife  has  a  separate  domicile,  her 
status  will  depend  on  the  laws  of  a  different  state 
from  her  husband;   two  different  states  are  inter- 

332 


DIVORCE 

ested  each  in  a  different  status  arising  from  the  same 
marriage.  If  in  such  case  the  court  of  the  wife's 
domicile  dissolves  the  marriage  on  her  application, 
not  only  is  such  divorce  no  bar  to  the  husband's 
application  for  a  divorce  in  his  state,  but  if  he  mar- 
ries again  on  the  strength  of  the  divorce  granted  to 
her,  his  courts  may  deem  him  a  bigamist ;  and  such 
will  be  the  effect  of  such  a  divorce,  except  by  comity 
through  which  its  validity  may  be  recognized  by 
such  states  as,  by  similar  legislation  or  in  some  other 
w^ay,  have  consented  to  the  granting  of  such  divorces 
for  their  citizens  by  other  states.  The  courts  where 
neither  party  is  domiciled  have  no  jurisdiction  at 
all ;  and,  as  such  suits  are  not  merely  suits  between 
the  husband  and  wife,  but  affect  a  public  institu- 
tion, their  consent  cannot  confer  jurisdiction,  so 
that  where  a  divorce  is  granted  in  a  state,  where 
neither  party  is  domiciled  but  in  a  proceeding  where 
both  parties  have  appeared,  though  both  parties 
may  be  personally  bound,  their  marriage  status  is 
not  affected.  Therefore,  the  divorce  court  of  any 
state  where  a  husband  or  wife  is  then  domiciled  has 
jurisdiction  to  dissolve  his  or  her  marriage,  and  no 
court  of  any  other  country  has  such  jurisdiction; 
but  in  a  few  cases  the  jurisdiction  of  another  coun- 
try may  be  recognized  by  comity.  And  except  un- 
der unusual  statutes,  it  does  not  affect  this  rule  that 
the  parties  were  married,  or  the  offense  commit- 
ted in  some  other  state,  even  though  in  such  state 
it  was  no  ground  for  divorce;  or  that  at  the  time 
of  the  marriage,  or  the  offense,  the  parties  were 
domiciled  elsewhere ;  or  at  the  time  of  bringing  the 
suit  a  domiciled  party  is  temporarily  abroad ;  or  that 
a  domiciled  party  o^wes  allegiance  to  a  foreign 
power. 

The  following  summary  of  rules  will  be  help- 
ful: 

333 


WOMAN  UNDER  THE  LAW 

Rule  1. — A  divorce  granted  by  the  court  of 
the  domicile  of  both  parties  is  valid  everywhere  un- 
der the  Constitution  of  the  United  States,  and  under 
the  principles  of  international  law,  although  the 
defendant  has  neither  been  summoned  nor  volun- 
tarily appeared,  provided  that  the  laws  of  the 
parties'  domicile  as  to  notice  by  publication  or  other- 
wise have  been  complied  with. 

Rule  2. — A  divorce  granted  by  the  court  of 
the  defendant's  domicile,  or  of  the  complainant's 
domicile  in  a  case  in  which  the  defendant  has  been 
summoned  or  has  voluntarily  appeared  is  probably 
valid  as  to  both  parties  everywhere  by  comity.  If 
the  defendant,  though  not  regularly  appearing  or 
summoned  has  had  actual  notice,  or  even  if  he  has 
had  only  constructive  notice  by  publication  or  other- 
wise, the  divorce  will  be  regarded  valid  as  to  both 
parties  by  comity  in  such  states  as  have  adopted  the 
policy  of  such  divorces  by  similar  legislation  or 
otherwise.  Even  when  not  regarded  as  valid  as  to 
the  non-domiciled  party,  such  divorces  will  be  re- 
garded as  valid  as  to  the  domiciled  party  everywhere 
by  the  United  States  Constitution  and  the  principles 
of  international  law. 

Rule  3. — A  divorce  granted  by  the  court  of  a 
state  where  neither  of  the  parties  is  domiciled  will 
not  be  regarded  as  valid  in  any  other  state,  although 
both  parties  have  submitted  themselves  to  the  juris- 
diction of  the  court.  Now  I  understand  the  rule  to 
be,  that  to  give  the  courts  of  any  state  jurisdiction 
over  the  marriage  relation  between  husband  and 
wife,  one  of  the  parties  at  least  must  have  a  domi- 
cile within  the  state.  Some  of  the  decisions  make 
further  requirements;  but  no  court  has  ever  held 
that  any  less  could  be  demanded. 

Rule  4. — A  divorce  granted  against  a  defend- 
ant who  has  neither  appeared  nor  been  summoned. 

334 


DIVORCE 

though  valid  as  far  as  it  affects  such  defendant's 
marriage  status,  will  not  be  valid  as  far  as  it  deals 
with  alimony,  or  costs,  or  prohibition  against  an- 
other marriage,  even  in  the  state  where  it  is  granted. 
Every  state  or  sovereignty  has  the  right  to  deter- 
mine the  domestic  relations  of  all  persons  having 
their  domicile  within  its  territory;  and  therefore, 
when  a  husband  or  wife  is  domiciled  within  a  partic- 
ular state,  the  courts  of  that  state  can  take  jurisdic- 
tion over  the  status,  and  for  proper  cause  dissolve 
the  relation.  The  decree  so  pronounced  is  a  judg- 
ment in  rem,  and  when  not  affected  by  fraud  it  is 
valid  everywhere,  and  under  the  constitution  of  the 
United  States  such  decrees  are  entitled  to  full  faith 
and  credit  in  all  the  states  of  the  Union.  But  such 
judgments,  when  rendered  on  orders  of  publication, 
can  only  have  effect  upon  the  thing  acted  on  by  the 
decree,  and  such  rights  as  are  dependent  upon  that 
for  its  existence.  Therefore,  if  a  court,  on  severing 
the  marriage  tie,  undertakes  to  render  a  decree  in 
personam  as  to  alimony,  it  can  have  no  extra-ter- 
ritorial effect.  But  the  marriage  status  being  acted 
on  and  dissolved  by  the  decree,  the  relation  becomes 
severed,  and  continues  so  in  all  other  states,  and 
property  rights  dependent  alone  upon  its  continued 
existence  must  cease,  not  only  w^ithin  the  state 
w^here  the  divorce  is  rendered,  but  in  all  other 
dominions.  After  such  dissolution  neither  party 
can  obtain  rights  dependent  upon  its  continued  ex- 
istence. The  husband  is  no  longer  entitled  to  cur- 
tesy and  the  wife's  incomplete  dower  must  cease. 
And  so  the  court  would  not  allow  a  wife  dow^er  who 
had  been  divorced  on  her  husband's  application  on 
notice  by  publication. 

Rule  5. — A  decree  against  a  defendant  who 
has  appeared  or  been  summoned  will  bind  him  per- 
sonally, though  for  want  of  jurisdiction  over  his  mar- 

335 


WOMAN  UNDER  THE  LAW 

ried  status  it  may  not  affect  that  status  in  other  states. 

Rule  6. — The  invalidity  of  a  divorce  due  to 
want  of  jurisdiction  may  be  shov/n  in  any  proceed- 
ing in  any  court,  such  decree  being  conclusive  of 
no  jurisdictional  facts.  In  a  Michigan  case  the  hus- 
band had  moved  into  Indiana,  and  had  taken  up  a 
false  domicile  and  secured  a  divorce.  The  Michigan 
court  went  behind  the  record,  declared  the  divorce 
void,  and  said:  "And  if  the  record  by  its  recitals 
makes  a  prima  face  case  of  jurisdiction,  no  one  in 
another  state  or  country  is  concluded  thereby;  but 
he  may  show  what  the  real  fact  was,  and  thus  dis- 
prove the  authority  for  making  such  a  record;  the 
jurisdiction  of  a  foreign  court  is  open,  whatever 
may  be  the  recitals  relating  thereto  in  the  judg- 
ment." 

Having  ascertained  w^hat  state  has  jurisdiction 
over  his  status,  and  which  court  in  that  state,  the 
complaining  party  examines  the  statutes  of  that 
state  and  discovers  what  complaints  he  has  which 
he  can  allege  as  causes  for  divorce,  and  also  w^hat 
kind  of  divorce  he  may  ask  for.  He  then  brings 
suit,  making  the  proper  persons  parties,  alleging  the 
material  facts,  and  praying  for  the  divorce  and  such 
other  relief  as  he  desires.  Under  the  practice  of  the 
court,  process  issues  against  the  defendant  by  sum- 
mons if  she  is  in  the  state,  and  by  publication  or 
otherwise,  as  provided  by  statute,  if  she  is  beyond 
the  jurisdiction  of  the  court.  After  the  expiration 
of  the  proper  time,  either  the  defendant  appears  and 
files  her  answer  alleging  such  defenses  as  she  may 
have,  or  she  makes  default.  The  case  then  goes  to 
proof  before  a  commissioner  or  referee,  or  in  open 
court  before  a  judge  or  a  judge  and  jury  and  the 
facts  and  law  being  found,  the  judgment  or  decree  is 
entered.  The  decree,  besides  dealing  with  the  mar- 
riage  relation,   may   affect   the   property   rights   or 

336 


DIVORCE 

children  of  the  parties.  Moreover,  during  the  pen- 
dency of  the  suit,  preliminary  decrees  or  orders  may 
be  given  in  the  case,  for  alimony  or  for  the  custody 
of  the  children,  or  for  the  protection  of  some  per- 
sonal or  pecuniary  right  of  one  of  the  parties.  All 
these  matters  must  be  separately  discussed. 

As  has  already  been  shown,  a  divorce  suit  is 
not  properly  a  suit  at  law  or  in  equity,  a  suit  in  con- 
tract or  for  tort,  but  a  proceeding  sui  generis.  In 
the  United  States,  divorce  jurisdiction  is  generally 
vested  in  the  equity  courts,  and  the  pleadings  and 
rules  of  evidence  are  the  same  in  divorce  suits  as  in 
other  suits  in  equity,  except  that  the  process  against 
the  defendant  is  somewhat  different  and  the  bill 
cannot  be  taken  for  confessed.  These  courts,  grant- 
ing divorces  so  far  only  as  empowered  by  statute, 
apply  the  principles  and  practice  of  the  ecclesiastical 
courts  so  far  as  they  are  suited  to  our  conditions 
and  the  general  spirit  of  our  laws,  and  not  modified 
or  limited  by  our  statutes  or  rules  of  court.  In  in- 
cidental matters  and  in  the  absence  of  special  rules 
the  ordinary  practice  of  the  court  is  followed. 

In  some  of  the  United  States  a  jury  trial  is  a 
matter  of  right  unless  waived,  and  issues  may  be 
sent  to  the  jury  at  the  request  of  either  party.  Else- 
where no  jury  trial  can  be  had,  and  the  judge  must 
determine  the  whole  matter.  Where  there  is  a  jury 
trial  instructions  are  given  to  the  jury  as  in  other 
cases.  Now,  in  England,  issues  may  be  sent  to  a 
jury  in  the  discretion  of  the  judge.  In  the  ecclesias- 
tical courts  there  was  no  jury,  and  the  judge  passed 
upon  both  the  law^  and  the  facts.  Such  is  the  case 
in  many  states  w^here  divorce  suits  are  brought  in 
equity;  the  testimony  is  taken  before  a  commis- 
sioner, and  is  then  referred  to  the  master  in  chan- 
cery, who  makes  his  report,  upon  which  the  judge 
enters  the  decree.     Sometimes  statutes  provide  for 

337 


WOMAN  UNDER  THE  LAW 

a  reference  of  a  case  to  a  referee  who  reports  to  the 
court,  and  the  court  decides  the  case.  Neither  a 
judge  nor  a  referee  or  master  can  delegate  his 
authority.  Sometimes  statutes  provide  that  the  case 
must  be  tried  in  open  court.  The  different  modes 
of  trial  are  too  much  a  matter  of  local  practice  to  be 
fully  discussed  here,  and  indeed  a  discussion  of  them 
would  be  of  no  consequence  to  the  reader. 

Amendments  will  be  allowed  as  in  other  cases, 
and  bills  of  particulars  may  be  demanded,  and  the 
court  may  order  important  papers  to  be  produced 
for  its  inspection.  Of  its  own  motion  the  court  can 
continue  the  case  that  new  evidence  may  be  taken. 
The  parties  may  by  mutual  consent  discontinue 
their  suit.  The  complainant  may  withdraw  his 
charges;  but  he  cannot  discontinue  his  suit  if  an 
answer  in  the  nature  of  a  cross  bill  has  been  filed. 
There  may  be  nunc  pro  tunc  judgments  as  in  other 
suits.  New  trials  may  be  granted  as  in  other  cases 
whenever  justice  shall  seem  to  require. 

In  general,  the  husband  and  the  wife  are  the 
only  necessary  and  proper  parties  to  a  divorce  suit ; 
but  in  cases  of  disability  the  suit  may  have  to  be 
brought  or  defended  by  a  guardian,  committee,  or 
next  friend.  In  England,  if  the  cause  alleged  is 
adultery,  the  paramour  must  be  a  party  if  known. 
Speaking  generally,  no  one  but  the  husband  or  wife 
in  person  can  be  a  complainant,  as  the  suit  is  purely 
a  personal  one,  and  the  complaint  must  be  signed  by 
the  complainant  in  person.  This  w^ill  appear  in  the 
succeeding  discussion.  But  any  third  person  whose 
pecuniary  rights  are  involved  may  be  made  a  de- 
fendant. The  state  is  always  an  informal  party  de- 
fendant although  not  named,  for  the  protection  of 
the  public  interests  of  the  state  and  the  children  of 
the  parties,  and  in  some  states  is  formally  repre- 
sented by  counsel. 

338 


DIVORCE 

As  a  general  rule,  a  wife  brings  or  defends  a 
divorce  suit  as  though  she  were  unmarried.  The 
practice  in  divorce  suits,  as  has  been  shown,  is  partly 
that  of  the  ecclesiastical  courts,  partly  that  of  chan- 
cery court,  and  partly  the  result  of  statutes  of  the 
particular  forum.  A  wife  sued  and  defended  alone 
in  the  ecclesiastical  court,  just  if  she  were  not 
married. 

In  equity  a  married  woman  could  not  be  sued 
at  all  without  her  husband  in  a  personal  suit,  and  in 
a  suit  respecting  her  property  her  trustee  or  hus- 
band had  to  be  joined;  nor  could  she  bring  suit  in 
equity  without  joining  her  husband,  trustee,  or  next 
friend.  As  a  matter  of  convenience  and  indeed  of 
necessity,  the  ecclesiastical  practice  has  prevailed, 
so  that  in  the  United  States  a  wife,  independently 
of  statute,  usually  brings  her  suit  for  divorce  or  de- 
fends the  same  alone  and  in  her  ow^n  name,  though 
in  cases  where  she  prays  for  some  equitable  relief  as 
to  her  pecuniary  rights  it  is  usual  to  join  her  next 
friend,  as  she  would  were  she  suing  for  the  same, 
independent  of  the  divorce.  In  some  states,  more- 
over, the  statutes  deal  with  this  subject,  and  the  wife 
is  authorized  to  sue  alone ;  and  where  she  is  author- 
ized to  sue  her  husband  in  her  ow^n  name  she  may  so 
sue  him,  though  there  is  another  party  joined  with 
him  as  defendant.  When  the  w^ife  improperly  sues 
alone  the  objection  must  be  made  by  demurrer,  and 
cannot  be  made  at  all  after  the  answer  is  filed.  Al- 
though the  wife  may  be  authorized  to  sue  alone,  this 
does  not  necessarily  imply  that  she  may  make  con- 
tracts for  the  services  of  attorneys,  and  concerning 
other  matters  relating  to  the  prosecution  of  the  case, 
as  though  she  were  not  married. 

Under  the  ecclesiastical  practice,  a  guardian 
ad  litem  was  appointed  to  conduct  the  suit  for  an 
infant  complainant  or  defendant.     In  ordinary  suits 

339 


WOMAN  UNDER  THE  LAW 

in  equity  the  practice  is  the  same.  And  it  would 
therefore  probably  be  proper  independently  of  the 
statute  to  have  a  guardian  ad  litem  appointed  for 
any  infant  party  to  a  divorce  suit.  But  this  is  not 
necessary,  as  the  courts  have  held  that  one  who  is 
old  enough  to  marry  is  old  enough  to  apply  for  a 
divorce,  and  that  one  w^ho  is  old  enough  to  acquire 
matrimonial  rights  is  old  enough  to  enforce  them; 
so  that  for  the  purposes  of  a  divorce  suit  full  age  is 
the  marrying  age,  and  an  infant  husband  or  wife 
may  sue  or  defend  in  his  or  her  own  name. 

Whether  a  divorce  may  be  granted  while  one 
of  the  parties  is  insane  has  been  much  disputed,  as 
great  injustice  may  be  done  an  innocent  party  both 
by  the  refusal  and  by  the  granting  of  divorces  in 
such  cases.  There  is  a  difference  between  the  case 
of  an  insane  complainant  and  that  of  an  insane  de- 
fendant, and  the  better  view  seems  to  be  that,  in- 
dependently of  statute,  no  divorce  will  be  granted 
on  behalf  of  an  insane  complainant,  but  that  the 
insanity  of  the  defendant,  which  has  arisen  after  the 
offense  complained  of,  w^ill  not  bar  the  complainant 
if  the  case  is  strictly  proved. 

The  right  to  a  divorce  is  strictly  a  personal  right 
which  can  be  waived  by  the  innocent  party,  and 
which  cannot  be  asserted  except  by  his  or  her  w^ill; 
therefore,  if  the  injured  party  be  insane,  no  matter 
how  outrageous  the  conduct  of  the  other  party,  no 
matter  what  scandal  may  result,  no  relation  or  guar- 
dian or  committee  can  bring  a  suit  for  divorce ;  and 
if  a  divorce  is  obtained  during  the  insanity  of  the 
complainant  it  w^ill  be  regarded  as  a  fraud,  and  w^ill 
be  declared  void  by  a  court  of  equity  on  the  applica- 
tion of  a  proper  party.  It  has,  how^ever,  been  held 
that  this  reasoning  does  not  apply  to  a  suit  for  a 
mere  separation,  or  a  nullity  suit,  or  a  suit  for 
alimony,  or  a  suit  for  a  share  in  the  husband's  es- 

340 


DIVORCE 

tate  after  his  death.  In  England,  under  the  general 
divorce  statute,  the  guardian  of  a  lunatic  may  bring 
such  a  suit ;  and  in  some  of  the  United  States  there 
are  similar  statutes. 

The  fact  that  a  party,  after  being  guilty  of  con- 
duct entitling  the  other  party  to  a  divorce,  becomes 
insane,  should  not  bar  such  other  party's  remedy; 
and  the  court,  which  takes  care  of  the  public  in- 
terest, will  likewise  protect  the  insane  defendant 
from  fraud  and  abuse,  but  must  grant  the  divorce 
if  the  case  is  clearly  made  out.  The  insane  defend- 
ant may  appear  and  defend  by  her  guardian  or  com- 
mittee. 

In  some  states,  in  order  to  preserve  the  prop- 
erty of  spendthrifts,  guardians  may  be  appointed  to 
take  charge  of  such  property.  Such  a  guardian 
could  not  sue  for  divorce  in  behalf  of  the  spend- 
thrift, because  as  we  have  seen  in  the  case  of  an  in- 
sane complainant,  the  right  to  bring  such  suit  is 
strictly  personal,  and  depends  upon  the  decision  of 
the  complainant  himself.  But  the  fact  that  a  guar- 
dian has  been  appointed  for  a  spendthrift  does  not 
invalidate  the  spendthrift's  power  to  decide  for  him- 
self whether  he  will  bring  suit  for  divorce,  and  he 
may  bring  such  suit  in  his  own  name  as  though  free 
from  disability.  There  may  be  other  disabilities  cre- 
ated by  statute,  and  how  they  would  effect  the  right 
to  sue  for  divorce  can  be  judged  from  the  reasoning 
in  the  cases  already  discussed  and  from  the  wording 
of  the  statutes. 

As  has  already  been  seen,  the  right  to  bring 
suit  for  a  divorce  is  a  personal  right,  and  no  one  ex- 
cept the  aggrieved  husband  or  w^ife  can  exercise  this 
right,  even  though  his  feelings  be  outraged  and  his 
pecuniary  interests  jeopardized  by  the  continuance 
of  the  marriage.  Nor  can  a  third  person  have  him- 
self made  a  party,  whether  he  be  an  alleged  para- 

341 


WOMAN  UNDER  THE  LAW 

mour  seeking  to  clear  himself,  or  a  creditor  seeking 
to  secure  his  debt;  but  in  such  cases  the  courts  will 
allow  such  persons  to  make  suggestions  in  the  trial 
of  the  case  and  to  cross  examine  the  witnesses.  Ex- 
cept under  statutes  the  complainant  has  no  right  to 
join  an  alleged  paramour  as  a  party  defendant ;  it  is 
only  so  far  as  pecuniary  rights  are  affected  that  a 
third  person  may  be  made  a  defendant.  A  w^ife 
may  make  anyone  a  co-defendant  who  claims  any 
rights  in  property  to  an  interest  in  which  she  may 
be  entitled  in  case  the  divorce  is  granted.  She  may 
pray  an  injunction  against  a  third  party  to  prevent 
the  consummation  of  a  fraudulent  assignment, 
may  seek  discovery  against  a  suspected  fraudulent 
assignee,  and  may  ask  to  have  a  fraudulent  deed  set 
aside.  In  such  cases  she  not  only  may,  but  should, 
make  such  persons  parties;  for  a  divorce  suit  of 
itself  does  not  create  the  lien  of  lis  pendens  on  the 
husband's  property.  But  a  wife  cannot  join  with 
herself  as  complainant  the  guardian  of  her  children, 
and  seek  in  the  same  case  a  divorce  and  the  settle- 
ment of  property  rights  not  connected  therewith. 
Third  persons  who  have  been  made  parties  to  a 
marriage  settlement  betw^een  a  husband  and  wife 
need  not  be  made  parties  to  a  divorce  suit  between 
them ;  nor  need  their  children  be  made  parties,  deep 
as  is  their  interest  in  the  result  of  the  suit. 

Marriage  is  not  a  mere  personal  relation,  but  a 
public  institution,  on  the  purity  and  integrity  of 
which  the  welfare  of  society  largely  depends;  not 
alone  are  the  personal  interests  of  the  parties  to  a 
divorce  suit  involved,  but  the  interests  of  the  chil- 
dren and  the  interests  of  the  public,  as  the  public 
stands  related  to  and  affected  by  the  institution  of 
marriage;  and  for  this  reason  marriages  cannot  be 
dissolved  by  the  consent  of  the  parties,  and  it  is  the 

342 


DIVORCE 

duty  of  the  divorce  court  in  all  cases  to  see  that  a 
cause  for  divorce  is  fully  proved,  and  that  there  has 
been  no  imposition  upon  the  court.  In  this  way  the 
state  through  its  judiciary  is  represented  in  every 
divorce  case;  and  the  court  will  of  its  own  motion 
carefully  scrutinize  the  evidence,  listen  to  the  sug- 
gestions of  outsiders,  call  for  an  explanation  of 
suspicious  circumstances,  and  even  postpone  the 
case  and  seek  to  bring  about  a  reconciliation  of  the 
parties  where  this  seems  proper  and  desirable.  In 
order  to  relieve  the  courts  of  the  responsibility  in 
such  matters,  laws  have  been  passed  in  some  coun- 
tries and  states  providing  that  the  state  shall  appear 
in  divorce  cases  and  be  represented  by  counsel, 
whose  duty  it  is  to  see  that  the  divorce  is  granted 
only  after  being  really  and  honestly  contested.  In 
this  sense  the  state  is  always  a  party  to  divorce  suits, 
and  divorce  suits  are  triangular.  By  statute  in  Eng- 
land, the  King's  proctor  intervenes  in  cases  where 
collusion  is  suspected  and  contests  the  suit.  In 
Scotland,  the  lord  advocate  so  appears.  In  Georgia, 
the  court  itself  must  look  into  the  bona  fides  of  the 
suit,  or  appoint  the  solicitor  general  or  other  counsel 
to  do  so.  In  Indiana,  if  no  defense  is  made  by  the 
defendant,  the  public  prosecutor  must  make  one. 
And  in  Kentucky,  the  county  attorney  must  resist 
all  divorce  suits. 

Upon  the  death  of  either  party  to  a  divorce  suit 
the  action  abates  and  cannot  be  revived.  This  rule 
applies  to  the  status  and  rights  dependent  solely 
upon  it,  such  as  counsel  fees  and  alimony,  but  not 
necessarily  to  other  matters  for  which  relief  is 
prayed  as  a  question  regarding  a  marriage  settle- 
ment, or  property  right  in  which  third  persons  made 
parties  are  interested,  as  to  which  matters  the  suit 
may  perhaps  be  revived. 

If  a  party  dies  after  the  case  has  been  taken 

343 


WOMAN  UNDER  THE  LAW 

under  advisement  by  the  court,  the  court  may  pass 
a  decree  dated  the  day  of  the  submission.  If  a  party 
dies  after  the  case  has  been  fully  tried,  but  before  it 
has  been  submitted  to  the  jury,  judgment  may  be 
entered  as  of  the  first  day  of  the  term; — such  pro- 
cedure being  allowed  under  the  particular  laws  of 
the  forum. 

If,  pending  an  appeal,  a  party  dies,  new  con- 
siderations arise.  If  a  divorce  has  been  refused,  the 
action  abates  finally.  If  a  divorce  has  been  granted, 
the  suit  likewise  abates,  though  perhaps,  as  to  third 
persons  interested  in  the  property,  the  suit  might 
be  revived;  and  there  are  statutes  in  some  states 
under  which  the  case  may  be  carried  to  its  final  de- 
termination. 

The  bill  or  libel  of  complaint  in  a  divorce  suit 
need  not  be  in  any  particular  form  or  contain  any 
technical  expressions;  it  need  only  set  forth  the 
relief  desired,  and  the  grounds  therefor  clearly  and 
briefly,  so  as  to  make  out  a  good  prima  facie  case. 
It  should  be  signed  by  the  complainant  in  person, 
not  by  attorney,  and  should  make  the  proper  parties 
defendants.  It  need  not  necessarily  be  sworn  to, 
though  this  is  the  usual  practice,  and  is  necessary  in 
some  places  by  statute. 

The  bill  must  allege  every  fact  upon  the  exist- 
ence of  which  the  authority  of  the  court  to  grant 
the  divorce  rests.  It  must  set  forth  substantially  in 
the  terms  of  the  statutes  of  the  forum  ( 1 )  all  facts 
necessary  to  give  the  court  jurisdiction  over  the 
parties;  and  (2)  all  facts  necessary  to  give  the  court 
jurisdiction  over  the  subject  matter,  to  w^it: — the 
marriage  and  cause  or  causes  for  divorce,  if  divorce 
only  be  prayed,  and  such  other  facts  as  entitle  the 
complainant  to  any  ancillary  relief  that  may  be 
prayed.  The  allegations  of  the  grounds  of  divorce 
must  be  made  with  all  possible  particularity  in  order 

344 


DIVORCE 

that  the  defendant  may  be  appraised  of  the  nature 
of  the  charges  and  be  able  to  properly  prepare  the 
defences.  Whether  there  must  be  allegations  nega- 
tiving the  defences  depends  largely  upon  the  stat- 
utes and  practice  of  the  particular  state;  in  prin- 
ciple there  need  be  no  such  allegations,  these  are  for 
the  defendant  to  make;  but  in  some  states  they  are 
expressly  required  by  statute,  and  in  others  they 
have  been  held  necessary  by  implication  from  stat- 
utes allowing  a  divorce  only  to  a  party  without 
fault,  or  an  injured  party.  Moreover,  any  fact  may 
be  alleged  which  seems  material,  without  doing  any 
particular  harm.  It  is  well  always  to  deny  present 
cohabitation. 

The  bill  of  complaint  should  pray  specifically 
for  the  relief  desired,  and  it  is  well  to  pray  for  such 
further  relief  as  the  case  may  require.  In  equity, 
if  there  is  a  prayer  for  special  relief  and  also  one  for 
general  relief,  although  a  case  for  specific  relief  is 
not  made  out,  such  relief  will  be  granted  as  it  ap- 
pears the  complainant  is  entitled  to.  If  an  absolute 
divorce  is  prayed,  a  limited  divorce  may  be  granted 
under  a  general  prayer;  but  a  prayer  for  divorce 
does  not  cover  a  decree  of  nullity.  It  is  usual, 
though  not  nesessary,  to  pray  for  alimony  and  the 
custody  of  the  children  in  the  bill  of  complaint ;  but 
this  is  not  necessary  as  it  may  be  done  by  substitute 
petition.  A  prayer  may  be  made  for  alimony  pen- 
dente lite,  for  counsel  fees,  for  custody  of  children 
pendente  lite,  for  an  injunction  to  prevent  the 
alienation  of  the  husband's  property  to  defeat  ali- 
mony, or  to  prevent  marital  interference  during  the 
suit,  and  for  such  other  relief  as  may  be  sought. 

Tw^o  or  more  causes  for  the  same  kind  of 
divorce  may  be  joined  in  the  same  complaint,  but  a 
cause  for  absolute  divorce  may  not  be  joined  with  a 
cause  for  limited  divorce.    A  suit  for  other  ancillary 

345 


WOMEN  UNDER  THE  LAW 

relief  may  be  joined  with  the  suit  for  divorce,  but 
not  a  mere  collateral  suit,  such  as  the  enforcing  of  a 
deed,  or  the  quieting  of  a  title,  or  the  settlement  of 
an  estate. 

As  the  first  principle  in  divorce  suits,  grounded 
on  the  public  interests,  is  that  the  case  shall  be  de- 
cided on  its  merits,  a  court  will  in  all  cases,  unless 
great  injustice  would  thereby  be  done,  allow  a  com- 
plainant to  amend  his  bill  of  complaint.  So,  too, 
a  supplemental  bill  of  complaint  may  be  filed  at  any 
time  during  the  suit,  covering  matters  w^hich  have 
arisen  or  been  discovered  since  the  filing  of  the 
original  bill. 

Most  defects  can,  of  course,  be  obviated  before 
a  final  decree  by  amendment  or  by  supplemental 
bill;  but  if  not  thus  removed  more  or  less  serious 
results  may  follow^.  When  a  jurisdictional  fact  does 
not  appear  on  the  face  of  the  bill  of  complaint,  the 
court  can  take  no  valid  step;  and  it  will  not  enter  a 
decree  of  divorce,  though  a  good  case  has  been 
proved  and  though  the  defendant  makes  no  objec- 
tion, unless  the  proper  prayers  and  allegations  are 
contained  in  the  bill.  No  proof  can  be  properly  and 
effectively  produced  except  under  the  allegations; 
if  these  are  vague  they  furnish  no  ground  for  proof. 
If  the  averments  are  insufficient  the  bill  will  be  dis- 
missed; if  immaterial  they  w^ill  simply  be  ignored 
and  treated  as  surplusage;  if  scandalous  and  imma- 
terial they  will  be  stricken  out;  if  indefinite  they 
will  not  support  proof,  and  will  justify  a  demand 
for  a  bill  of  particulars.  If  the  bill  is  not  properly 
signed  it  will  be  dismissed.  And  as  long  as  the  bill 
is  defective  no  alimony  pendente  lite  or  counsel  fees 
will  be  allowed.  But  the  answer  may  w^aive  the 
vagueness  of  the  allegation. 

Statutes  alone  create  causes  for  judicial  divorce 
and  to  justify  a  divorce  the  ground  of  complaint 

346 


DIVORCE 

must  be  a  cause  for  divorce  by  the  laws  of  the 
forum.  In  every  state  where  a  divorce  can  be 
granted  there  are  divorce  statutes,  which  should  be 
referred  to  in  connection  with  any  question  dis- 
cussed in  this  chapter.  In  England  and  in  each  of 
the  United  States,  with  one  exception,  divorce  is 
allowed,  though  the  causes  recognized  are  most 
diverse.  The  exception  is  South  Carolina,  where  no 
divorce  is  allowed  for  any  cause. 

As  to  the  time  of  the  commission  of  the 
offense  alleged  as  a  cause  for  divorce: — it  should 
have  been  committed  after  the  passage  of  the  sta- 
tute making  it  a  cause  for  divorce,  and  before  the 
filing  of  the  bill  of  complaint;  though  a  statute  re- 
ferring expressly  to  offenses  already  committed 
w^ould  not  be  unconstitutional,  and  an  offense  com- 
mitted after  filing  the  bill  of  complaint  may  be  set 
up  in  a  supplemental  bill. 

As  to  the  place  of  the  commission  of  the 
offense  alleged  as  cause  of  divorce: — in  the  absence 
of  special  statute  this  is  immaterial;  adultery  com- 
mitted abroad  is  as  good  a  ground  for  complaint  as 
adultery  committed  at  home.  A  statute  making  im- 
prisonment in  the  state  prison  a  cause  for  divorce 
has,  however,  been  held  to  refer  only  to  imprison- 
ment in  the  prison  of  the  state  of  the  forum. 

The  causes  for  divorce  are  divided  as  fol- 
lows:— First,  causes  existing  at  the  time  of  the  mar- 
riage and  affecting  the  validity  thereof,  rendering 
it  void  or  voidable ;  these  are  not  properly  causes  for 
divorce  at  all,  but  are  causes  for  nullity  of  marriage; 
and  second,  those  arising  after  the  parties  have  be- 
come husband  and  wife,  which  are  the  only  real 
causes  for  divorce.  Both  these  kinds  of  causes  are 
enumerated  in  the  same  statutes  in  many  states, 
the  statutes  authorizing  the  same  kind  of  divorce 

347 


WOMAN  UNDER  THE  LAW 

therefor;  and  the  greatest  confusion  has  been  pre- 
vented only  by  intelligent  interpretation. 

The  causes  for  divorce  recognized  in  the  stat- 
utes of  the  various  states  are  as  follows :  (  1  )  the 
incapacity  of  one  of  the  parties  at  the  time  of  the 
marriage,  including  nonage,  mental  incapacity, 
physical  incapacity  or  impotence,  consanguinity 
and  affinity,  and  difference  of  race;  (2)  defects  in 
the  consent  of  the  parties  to  be  married,  arising  from 
error,  fraud  or  duress.  These  causes  are  discussed 
in  the  chapter  on  Marriage;  (3)  any  offense  in 
the  discretion  of  the  court;  (4)  adultery;  (5) 
abandonment  or  desertion;  (6)  cruel  and  abusive 
treatment;  (7)  gross  and  confirmed  habits  of  in- 
toxication; (8)  refusal  to  support;  (9)  crime; 
(  1  0)  obtaining  divorce  in  another  state. 

The  legislatures  of  some  states  have  left  the 
grounds  for  granting  a  divorce  more  or  less  within 
the  discretion  of  the  courts;  a  Connecticut  statute 
allows  divorce  for  other  causes,  and  for  any  such 
misconduct  as  permanently  destroys  the  happiness 
of  the  petitioner,  and  defeats  the  purpose  of  the 
marriage  relation.  A  Kentucky  statute  allows 
divorce  for  any  cause  in  the  discretion  of  the  court. 
Though  the  constitutional  right  to  do  this  has  been 
recognized  the  policy  of  such  statutes  has  been 
much  questioned  and  in  most  places  the  statutes 
themselves  have  been  repealed. 

When  the  courts  are  thus  given  a  discretion, 
it  is  meant  that  it  must  be  exercised  upon  some 
salutary  principle,  and  not  in  such  manner  as  to 
reduce  the  marriage  relation  to  a  mere  state  of  con- 
cubinage, at  the  mercy  of  the  parties  and  the  courts. 
The  discretion  must  be  exercised  in  conformity  with 
the  common-sense  and  feelings  of  the  community, 
and  the  principles  of  the  existing  legislation  on 
divorce.     The  court  should  prescribe  to  itself  such 

3A8 


DIVORCE 

principles  as  sound  law-givers,  who  allow  divorce  at 
all,  would  send  as  a  rescript  to  a  judiciary. 

When  any  conduct  destroying  the  happiness  of 
the  parties,  is  a  cause  for  divorce,  it  is  not  enough 
that  a  party  has  alleged  that  certain  conduct  has 
destroyed  the  happiness  and  defeated  the  purposes 
of  the  marriage,  but  the  court  must  see  that  the  wel- 
fare of  the  parties  and  of  the  community  demands 
the  divorce.  An  appeal  lies  from  such  discretionary 
decision  but  the  decision  w^ill  be  reversed  only  in  a 
very  clear  case.  When  the  statutes  of  the  state 
allow  divorces  both  for  specified  causes  and  for 
general  causes  in  the  discretion  of  the  court,  the 
two  grants  are  distinct;  the  court  cannot  in  its  dis- 
cretion refuse  to  grant  a  divorce  for  a  specified 
cause,  nor  can  a  specified  cause  be  proved  under  a 
general  allegation  and  appeal  to  the  court's  discre- 
tion ;  nor  can  the  court  grant  a  divorce  for  an  offense 
of  the  nature  of  the  specified  cause,  but  lacking 
some  essential  element;  but  if  there  is  a  combina- 
tion of  circumstances  bearing  on  several  distinct 
causes,  but  not  quite  sufficient  to  establish  any  one, 
the  discretion  may  be  exercised.  Under  a  statute 
enumerating  certain  causes  and  leaving  further 
causes  within  the  discretion  of  the  court,  the  latter 
provision  w^as  held  to  cover  only  such  causes  as 
w^ere  known  at  common  law,  and  were  not  named  in 
the  statute,  and  not  therefore  insanity.  When  a 
statute  says  that  for  certain  causes  a  court  "may" 
grant  a  divorce  it  does  not  mean  "shall"  but  leaves 
the  matter  in  the  sound  discretion  of  the  court. 

As  a  cause  for  divorce,  adultery  is  almost  uni- 
versally recognized;  but  not  always  simply  adul- 
terv,  for  aggravating  circumstances,  such  as  big- 
amy, cruelty,  or  desertion,  or  scandalous  or  repeated 
adulteries,  are  sometimes  required. 

Adultery   may   be   defined   as    the   voluntary 
349 


WOMAN  UNDER  THE  LAW 

sexual  intercourse  of  a  wife  with  a  man  not  her 
husband,  or  of  a  husband  with  a  woman  not  his 
wife.  It  makes  no  difference  whether  the  other 
party  is  married  or  single,  is  free  or  a  slave.  A  bona 
fide  belief  of  a  husband  that  his  wife  is  divorced 
from  him  does  not  save  his  intercourse  with  another 
woman  from  being  adultery  for  the  purpose  of 
divorce,  but  a  bona  fide  belief  that  she  is  dead,  it 
seems,  does.  To  constitute  the  offense  the  act  must 
be  voluntary,  and  it  is  not  adultery  if  a  woman  is 
ravished,  or  is  insane  at  the  time  of  the  intercourse. 
When  to  be  a  ground  for  divorce,  adultery  must  be 
accompanied  by  bigamy,  the  adultery  and  bigamy 
must  be  with  the  same  person ;  if  cruelty  is  required 
in  addition  to  the  adultery,  it  must  be  legal  cruelty; 
if  desertion,  it  must  be  legal  desertion,  and  must 
be  voluntary  without  the  other  party's  consent,  or 
justifying  conduct.  When  living  in  adultery  is 
required,  a  single  or  concealed  act  will  not  suffice, 
though  the  intercourse  need  not  continue  to  the 
time  of  bringing  the  suit.  In  Kentucky,  lewd  and 
lacivious  conduct  without  proof  of  the  act  amounts 
to  adultery. 

As  already  show^n,  the  place  of  the  commission 
of  the  adultery  is  immaterial;  and  so  is  the  time, 
provided  that  the  adultery  took  place  before  the 
filing  of  the  bill  or  supplemental  bill,  and  after  the 
passage  of  the  act  making  it  a  cause  for  divorce. 

It  is  with  regard  to  the  allegation  and  proof  of 
adultery  that  most  questions  arise. 

Adultery  must  be  alleged  as  adultery;  and  the 
particulars  of  time,  place,  person,  and  circum- 
stances, as  far  as  known,  should  be  alleged, — the 
allegation  of  place  and  person  being  the  most  im- 
portant. And  the  complainant  must  know  enough 
to  make  a  specific  charge,  and  he  cannot  allege 
adultery  generally  with  the  intention  of  picking  up 

350 


DIVORCE 

the  evidence  as  he  goes  along;  nor  can  he  seek  to 
find  out  facts  showing  adultery  by  a  bill  of  discovery 
against  the  defendant.  General  allegations  are, 
however,  sufficient  when  founded  upon  the  de- 
fendants  pregnancy  without  access  of  complainant, 
or  venereal  disease,  or  habitual  adultery.  And  so 
the  allegation  that  the  defendant  is  a  prostitute  is  a 
sufficient  allegation  of  adultery,  but  this  allegation 
must  be  proved  if  made,  and  will  not  support  proof 
of  a  single  act  of  adultery;  and  the  same  may  be 
said  of  an  allegation  that  the  defendant  has  been 
living  in  adultery.  In  regard  to  these  allegations, 
the  practice  of  different  states  is  more  or  less  strict; 
and  too  general  allegations  may  be  waived  by  the 
defendant  if  he  files  his  answer  without  objecting. 
Fuller  allegations  may  be  obtained  by  a  bill  of  partic- 
ulars. And  defects  may  be  obviated  by  amend- 
ment. 

The  chief  importance  of  the  allegations  lies  in 
their  sufficiency  to  support  the  proof  that  may  be 
offered;  the  proof  must  correspond  w^ith  them. 
Proof  of  adultery  with  A  will  not  support  an  allega- 
tion of  adultery  with  B;  nor  will  proof  of  adultery 
at  A  sustain  an  allegation  of  adultery  at  B.  The 
particular  offense  alleged  must  be  proved;  if  several 
offenses  are  alleged,  all  need  not  be  proved. 

As  to  the  nature  of  the  proof,  adultery  may  be 
established  either  by  the  evidence  of  parties  who 
saw^  the  act  committed,  or  by  proof  of  facts  from 
which  intercourse  may  be  inferred.  It  is  a  funda- 
mental rule,  that  it  is  not  necessary  to  prove  the 
direct  fact  of  adultery,  because,  if  it  were  otherw^ise, 
there  is  not  one  case  in  a  hundred  in  which  that 
proof  would  be  attainable.  It  is  very  rarely  indeed 
that  the  parties  are  surprised  in  the  direct  fact  of 
adultery.  In  every  case,  almost,  the  fact  is  inferred 
from  circumstances  that  lead  to  it  from  a  fair  in- 

351 


WOMAN  UNDER  THE  LAW 

ference  as  a  necessary  conclusion;  and  unless  this 
were  the  case,  and  unless  this  were  so  held,  no  pro- 
tection whatever  could  be  given  to  marital  rights. 
What  are  the  circumstances  which  lead  to  such  a 
conclusion  cannot  be  laid  down  universally,  though 
many  of  them,  of  a  more  obvious  nature  and  of 
more  frequent  occurrence,  are  to  be  found  in  the 
ancient  books.  At  the  same  time  it  is  impossible 
to  indicate  them  universally;  because  they  may  be 
infinitely  diversified  by  the  situation  and  character 
of  the  parties,  by  the  state  of  general  manners,  and 
by  many  other  incidental  circumstances  apparently 
slight  and  delicate  in  themselves,  but  which  may 
have  the  most  important  bearing  in  decisions  upon 
the  particular  case.  The  only  general  rule  that  can 
be  laid  down  upon  the  subject  is,  that  the  circum- 
stances must  be  such  as  would  lead  the  guarded  dis- 
cretion of  a  reasonable  and  just  man  to  the  conclu- 
sion; for  it  is  not  to  lead  a  harsh  and  intemperate 
judgment,  neither  is  it  to  be  a  matter  of  artificial 
reasoning,  judging  upon  such  things  differently 
from  what  would  impress  the  careful  and  cautious 
consideration  of  a  discreet  man.  The  facts  are  not 
of  a  technical  nature;  they  are  facts  determinable 
upon  common  grounds  of  reason;  and  courts  of 
justice  would  w^ander  very  much  from  their  proper 
office  of  giving  protection  to  the  rights  of  mankind, 
if  they  let  themselves  loose  to  subtleties,  and  remote 
and  artificial  reasonings  upon  such  subject.  Upon 
such  subjects  the  rational  and  legal  interpretation 
must  be  the  same.  On  account  of  the  secret  and 
private  nature  of  the  offense,  direct  proof  by  wit- 
nesses w^ho  saw  the  act  committed  is  very  rare ;  and 
the  best  proof  that  can  be  expected  is  evidence  that 
the  parties  w^ere  seen  in  the  same  bed,  or  lived  to- 
gether in  the  same  house  as  husband  and  wife; 
equally  good  is  evidence  that  the  defendant  gave 

352 


DIVORCE 

birth  to  a  child  without  access  of  the  complainant, 
or  had  a  venereal  disease  too  long  after  marriage 
to  have  been  the  result  of  intercourse  before  mar- 
riage. But  in  the  mass  of  divorce  cases  adultery  is 
proved  by  circumstantial  evidence  of  a  great  num- 
ber of  details  in  the  life  and  conduct  of  the  de- 
fendant; and  the  circumstances  from  which  adul- 
tery may  be  inferred  must  be  such  as  to  satisfy  a 
reasonable  and  just  man  almost  beyond  reasonable 
doubt;  that  is  to  say,  that  while  the  same  amount  of 
evidence  is  not  required  as  in  criminal  cases,  adul- 
tery is  in  fact  a  crime,  and  is  the  most  serious  of  all 
offenses  against  marriage,  and  can  be  proved  only 
by  the  clearest,  most  positive,  and  most  satisfactory 
evidence,  and  will  not  be  held  as  proved  if  the  facts 
on  which  the  charge  is  based  are  consistent  with 
innocence. 

The  proof  should  be  tw^o-fold.  It  should  show  a 
criminal  attachment  between  the  parties  involving 
a  mutual  intention  or  desire  to  indulge  in  inter- 
course and  opportunities  to  gratify  that  criminal 
desire.  If  the  criminal  intention  is  shown,  and  op- 
portunities have  been  ample,  adultery  will  be  pre- 
sumed. Opportunities  alone  are  not  enough;  nor 
are  opportunities  with  mere  suspicious  circum- 
stances; but  a  number  of  suspicious  circumstances, 
none  of  which  alone  would  be  sufficient,  may,  com- 
bined, justify  the  conclusion  of  guilt.  If  a  man  goes 
to  a  house  of  ill-fame  and  shuts  himself  up  with  a 
prostitute,  there  can  be  little  doubt  of  his  guilt;  and 
his  entering  such  a  house  is  strong  evidence  against 
him  which  he  must  explain, — for  example,  by  show^- 
ing  that  he  w^as  employed  as  agent  of  a  vice  society 
to  go  there;  so  it  is  almost  conclusive  against  a 
woman  when  she  goes  to  such  a  house  with  a  man 
not  her  husband,  or  unattended;  but  she  may  ex- 
plain that  she  did  not  know  the  nature  of  the  house, 

353 


WOMAN  UNDER  THE  LAW 

and  was  induced  to  go  there  by  agents  and  spys  of 
her  husband.  If  criminal  intercourse  is  shown  to 
have  taken  place  between  two  parties,  it  is  presumed 
to  continue  as  long  as  they  live  under  the  same  roof. 
A  judge  must  decide  on  the  evidence  as  a  jury 
would. 

The  witnesses  in  a  divorce  suit  for  adultery 
constitute  an  important  factor,  as  the  evidence  is  so 
largely  circumstantial,  and  slight  variations  may 
change  the  w^hole  significance  of  doubtful  situa- 
tions. The  husband  or  wife  can,  in  general,  testify; 
but  even  where  the  bill  and  answer  are  taken 
as  evidence,  a  divorce  will  not  be  granted  w^ithout 
other  evidence.  Confessions  of  adultery  are,  how- 
ever, admissable,  if  not  made  for  the  purposes 
of  the  suit,  and  if  not  obtained  by  fraud.  The 
witnesses  usually  called  to  prove  adultery  are  ser- 
vants, neighbors,  children,  the  paramour,  the  para- 
mour's husband  or  wife,  detectives,  and  prostitutes. 
The  evidence  of  young  children  is  not  entitled  to 
much  weight.  The  testimony  of  the  paramour 
should  be  listened  to  with  caution,  and  should  al- 
ways be  corroborated.  And  prostitutes,  while  not 
wholly  unworthy  of  belief,  cannot  be  relied  upon. 
The  court  is  not  bound  to  believe  any  witness.  More 
will  be  said  as  to  witnesses  later  on  in  this  chapter. 

The  defenses  in  suits  for  adultery  are  either 
in  the  nature  of  absolute  denial,  or  of  confession  and 
avoidance.  Under  the  latter  head  are  connivance, 
collusion,  condonation,  recrimination  and  limita- 
tions, which  I  shall  discuss  hereafter. 

Next  to  adultery,  cruelty  is  the  most  common 
cause  for  divorce.  Like  adultery,  it  was  a  cause  for 
limited  divorce  in  the  English  ecclesiastical  courts; 
and  in  the  United  States  it  is  now  found  as  a  cause 
for  absolute  divorce,  and  for  limited  divorce,  ac- 
cording to  the  various  statutes.     In  general,  in  con- 

354 


DIVORCE 

struing  the  statutes  of  the  various  states,  the  rules 
of  the  ecclesiastical  law,  as  laid  down  in  the  eccle- 
siastical reports,  are  followed  as  far  as  possible. 

As  a  cause  for  divorce,  cruelty  is  the  wilful 
and  persistent  causing  of  unnecessary  suffering, 
whether  in  realization  or  in  apprehension,  whether 
of  body  or  of  mind  in  such  a  way  as  to  render  cohab- 
itation dangerous  or  unendurable.  Cruelty  under 
the  civil  law  is  called  salvitia.  In  respect  to  the  law, 
the  question  naturally  occurs,  what  constitutes 
cruelty  in  view  of  the  law.  It  is  difficult  and  hardly 
safe,  and  at  the  same  time  it  is  unnecessary,  to  de- 
fine it  affirmatively  with  precision.  It  can  only  be 
described  generally,  and  rather  by  effects  produced 
than  by  acts  done.  That  the  duty  of  cohabitation 
is  released  by  the  cruelty  of  one  of  the  parties  is  ad- 
mitted, but  the  question  occurs,  what  is  cruelty? 
Mere  austerity  of  temper,  petulence  of  manners, 
rudeness  of  language,  a  want  of  civil  attention  and 
accommodation,  occasional  sallies  of  passion,  if  they 
do  not  threaten  bodily  harm,  do  not  amount  to  legal 
cruelty.  I  never  knew^  of  a  case  in  w^hich  the  court 
granted  a  divorce  without  proof  given  of  a  reason- 
able apprehension  of  bodily  harm.  I  say  apprehen- 
sion, because  assuredly  the  court  is  not  to  wait  until 
the  harm  is  actually  done;  but  the  apprehension 
must  be  reasonable;  it  must  not  be  an  apprehension 
arising  merely  from  an  exquisite  and  diseased  sen- 
sibility of  mind.  It  is  not  mere  disagreement  or 
incompatibility,  for  the  parties  take  each  other  for 
better  or  w^orse.  Cruelty  may  be  of  a  husband  to 
his  wife  or  of  a  wife  to  her  husband.  We  must  con- 
sider, in  judging  whether  any  particular  conduct  has 
been  cruel,  the  intent  of  the  person  w^hose  conduct 
is  in  question,  its  persistence,  and  its  effect  on  the 
other  party's  body  or  mind. 

The  injury  must  be  done  deliberately;  it  must 
355 


WOMAN  UNDER  THE  LAW 

be  wilful.  Vices,  gaming,  gross  extravagance, 
might  occasion  great  suffering  and  bodily  ill  health ; 
yet  this  would  not  be  cruelty.  And  the  same  may 
be  said  of  a  disagreeable  temper  and  rudeness,  and 
want  of  affection,  and  neglect,  and  of  many  mis- 
takes due  to  ignorance.  If  a  husband  in  good  faith 
charges  his  w^ife  w^ith  crime  it  is  not  cruelty  but  if  he 
does  it  to  make  her  suffer,  it  is;  so  if  he  maltreats 
the  children,  it  is  not  cruelty;  but  if  he  does  this  to 
annoy  his  w^ife  and  make  her  suffer,  it  is.  And  as 
the  conduct  must  spring  from  a  free  will,  the  acts  of 
a  person  while  insane,  are  not  cruelty;  but  if  the 
conduct  results  from  an  insane  delusion,  or  from 
miadness  caused  by  drink,  it  may  constitute  cruelty. 
The  intent  is  generally  show^n  by  the  persistency  of 
the  party  in  the  course  of  conduct  complained  of, 
and  the  intent  to  injure  arising  suddenly  under  great 
provocation  would  not  perhaps  fill  the  requirements 
as  to  deliberateness.  A  great  provocation  may 
justify  a  certain  amount  of  violence. 

Generally,  a  divorce  will  not  be  granted  for  a 
single  act  of  cruelty.  But  acts  of  cruelty  need  not 
become  a  fixed  habit  before  relief  can  be  had.  It  is 
presumed  that  a  single  act  standing  by  itself  w^ill  not 
be  repeated;  but  if  the  single  act  is  one  step  in  a 
course  of  conduct,  and  the  court  is  satisfied  that 
similar  acts  are  likely  to  occur,  the  single  act  will  be 
sufficient.  In  such  cases  the  reasonable  apprehen- 
sion of  the  injured  party,  and  the  mental  suffering 
thereby  occasioned,  constitute  the  cruelty.  So  that 
under  different  circumstances  a  single  act  or  an 
entire  course  of  life  may  constitute  cruelty. 

Personal  violence  or  maltreatment  of  the  per- 
son to  the  injury  of  health,  is  legal  cruelty.  So  is 
conduct  endangering  life,  limb,  or  health.  So  is 
wilfully  or  recklessly  communicating  to  her  a 
disease,  such  as  the  itch,  or  a  venereal  disease,  or 

356 


DIVORCE 

impairing  her  health  by  excessive  intercourse.  But 
every  slight  touching  is  not  a  bodily  injury.  What 
is  really  injurious  may  depend  upon  the  party's  con- 
stitution; and  a  gentle  fragile  woman  might  be 
granted  a  divorce  where  an  Amazon  or  a  Spartan 
would  not.  And  so  acts  may  be  cruel  to  a  woman 
who  is  pregnant  or  otherw^ise  ill,  w^hich  would  not 
be  cruel  to  one  in  good  health. 

That  the  infliction  of  mental  suffering  is  not 
cruelty  unless  the  suffering  be  occasioned  by  reason- 
able apprehensions  of  bodily  harm  has  been  repeat- 
edly decided.  But  in  cases  where  cohabitation,  and 
life  itself  almost,  is  unbearable,  the  old  rule  should 
certainly  be  relaxed.  Conduct  which  produces  per- 
petual social  sorrow,  although  physical  food  be  not 
withheld,  may  well  be  classed  as  cruel,  and  entitle 
the  sufferer  to  relief.  Meaningless  threats,  not  in- 
tended to  be  executed,  and  so  understood  by  the 
party  threatened,  are  not  sufficient.  Words  of 
abuse  and  of  reproach  create  only  resentment,  and 
are  not  legal  cruelty;  but  w^ords  of  menace,  intimat- 
ing a  malignant  intention  of  doing  bodily  harm,  and 
even  affecting  the  security  of  life,  are  legal  cruelty. 
The  court  is  not  to  wait  until  the  threats  are  carried 
into  execution;  but  is  to  interpose  where  the  words 
are  such  as  might  raise  a  reasonable  apprehension 
of  violence,  and  excite  such  fear  and  terror  as  make 
the  life  of  the  wife  intolerable.  If  rendering  the  life 
intolerable  be  the  true  criterion  of  cruelty,  what  can 
have  that  effect  more  than  continual  terror,  and  the 
constant  apprehension  of  bodily  injury?  It  may  be 
shown  that  there  -were  mere  words  of  heat,  but 
prima  facie  it  is  to  be  understood  that  a  man  means 
what  he  saj'^s.  Many  of  the  statutes  by  their  terms 
cover  such  mental  suffering  as  render  the  party's 
condition  intolerable.  So  it  is  that  in  many  states, 
foul,  obscene,  and  disgusting  language,  calculated 

357 


WOMAN  UNDER  THE  LAW 

to  degrade  a  wife  and  wound  her  feelings,  may  con- 
stitute legal  cruelty.  So  of  foul  and  indecent  con- 
duct, as  where  a  husband  makes  a  brothel  of  his  own 
house.  But  the  mental  suffering,  as  we  have  seen, 
must  result  from  acts  intentionally  directed  towards 
the  sufferer. 

Instances. — The  cruel  conduct  must  be  such 
as  to  render  the  cohabitation  of  the  parties  unsafe  or 
unendurable.  Thus  a  husband  frequently  drunken 
w^ho  chokes  his  wife,  coarsely  accuses  her  of  un- 
chastity,  locks  her  up  and  threatens  to  smash  her 
head  with  a  brick,  is  guilty  of  such  inhuman  conduct 
as  endangers  her  life.  So  repeated  application  of 
coarse  epithets  to  a  wife,  accompanied  once  by  ac- 
tual bodily  harm  and  once  by  threats  to  take  her  life 
has  been  held  to  be  legal  cruelty.  But  mere  smash- 
ing of  dishes,  threats  to  kick  the  wife  out  of  doors 
and  grossly  improper  language  have  been  held  in- 
sufficient to  constitute  legal  cruelty.  Pulling  the 
hair  out  of  the  wife's  head  is  not  only  cruel,  but 
evidence  of  deliberation.  Mere  disregard  of  the 
marriage  obligations  is  not  cruelty;  nor  is  want  of 
affection;  nor  are  slight  differences  and  quarrels; 
nor  is  desertion;  nor  is  failure  to  support;  nor  is 
refusal  of  sexual  intercourse  though  this  may  be  an 
indignity ;  but  excessive  intercourse  may  be  cruelty, 
or  when  the  wife's  health  is  delicate  or  w^here  the 
husband  has  a  venereal  disease.  Mere  immoral  con- 
duct is  not;  nor  is  masturbation  in  the  presence  of 
the  wife;  but  openly  consorting  with  loose  females 
may  help  to  make  out  a  case  of  cruelty.  Adultery 
and  habitual  intemperance  are  not;  though  drunk- 
enness causing  ill-treatment  may  be.  Whipping  a 
wife  is  cruelty,  and  so  may  be  maliciously  charging 
her  w^ith  crime,  or  with  unchastity,  or  maltreating 
her  children.  But  mere  provoking  and  exasperating 
conduct  is  not.     Nor  is  it  cruelty  necessarily  for  a 

358 


DIVORCE 

husband  to  forbid  his  wife  from  going  to  church,  or 
visiting  her  family  or  relatives.  Nor  is  a  bona  fide 
groundless  charge  of  crime  or  suit  for  divorce. 

A  party  charged  with  cruelty  may  justify  him- 
self or  herself  by  showing  that  the  other  party  was 
equally  to  blame.  But  a  husband  cannot  justify 
himself  on  the  ground  that  he  was  exercising  his 
marital  rights. 

As  we  have  seen,  a  husband  has  no  right  to 
whip  his  wife.  By  the  old  law  he  could  give  his 
wife  "moderate  correction";  but  the  rule  now  seems 
to  be  that  he  can  use  force  for  prevention  but  never 
for  correction.  The  law  is  for  the  relief  of  an  op- 
pressed party  and  the  courts  will  not  interfere  in 
quarrels  where  both  parties  commit  reciprocal  ex- 
cesses and  outrages.  Violence  inflicted  in  a  mutual 
contest  is  not  legal  cruelty  as  in  a  case  where  a  wife 
refused  to  give  up  to  her  husband  his  keys,  and  was 
thrown  against  the  wall  and  bruised  in  the  scuffle 
that  ensued.  There  is  a  certain  conduct  that  may 
be  justified  by  the  provocation;  but  groundless  or 
unreasonable  jealousy  is  not  sufficient  provocation 
for  bodily  injury,  nor  is  bad  temper.  And  nothing 
could  justify  a  husband  in  kicking  his  pregnant  wife 
in  the  side,  or  in  attempting  to  burn  his  wife  alive, 
or  in  occasioning  by  his  violence  a  premature  de- 
livery, or  in  refusing  to  his  wife  the  common  use  of 
air,  or,  in  fact,  in  any  acts  which  involve  imminent 
danger  to  health  or  life.  These  instances  are  taken 
from  adjudicated  cases.  The  discussion  of  justify- 
ing conduct  is  in  reality  a  branch  of  the  subject  of 
recrimination,  which  will  be  treated  further  on  in 
this  chapter. 

The  charge  of  cruel  conduct  should  be  set  forth 
in  the  bill  of  complaint  substantially  in  the  words  of 
the  statutes  of  the  forum,  and  the  material  facts 
relied  on  should  be  set  forth,  in  some  states  with 

359 


WOMAN  UNDER  THE  LAW 

considerable  minuteness  as  to  time,  place,  and  cir- 
cumstances, in  others  quite  generally,  according  to 
the  practice  of  the  court.  There  should  be  a  general 
allegation,  as  of  cruel  conduct,  during  a  certain 
time,  and  special  allegations  of  particular  facts,  such 
as  infection  with  venereal  disease.  If  the  bill  is  too 
general  the  defect  must  be  taken  advantage  of  by 
special  demurrer  in  some  states;  though  of  course, 
the  generality  of  the  bill  may  be  waived  and  partic- 
ulars demanded.  And  the  bill  may  generally  be 
amended. 

The  proof  must  correspond  with  the  allega- 
tions general  and  specific.  Under  a  general  allega- 
tion, such  as  habitual  cruelty,  special  facts  besides 
those  alleged  may  be  proved.  When  only  special 
facts  are  alleged  it  is  doubtful  how^  far  proof  of 
general  conduct  is  admissable.  All  the  facts  alleged 
need  not  be  proved,  but  only  sufficient  to  constitute 
a  ground  for  divorce.  The  parties  can  testify  by 
virtue  of  statutes,  but  not  otherwise,  and  their  con- 
fessions may  be  given  in  evidence,  and  declarations 
made  at  the  time  of  the  cruelty  may  be  proved  as 
part  of  the  res  gestae.  So  bruises  may  be  shown  if 
connected  with  the  defendant's  conduct  as  evidence 
of  its  violence,  and  drunkenness,  abusive  language, 
etc.,  may  be  shown  to  prove  the  intent. 

The  defendant  may  deny  that  he  was  guilty  of 
cruel  conduct,  or  plead  justification,  recrimination, 
or  condonation  w^hich  are  hereafter  discussed. 

Abandonment  or  desertion  of  one  party  by 
the  other  to  a  marriage  is  quite  commonly  a  cause 
for  divorce  under  statutes  in  the  United  States  and 
Great  Britain.  In  some  states  it  is  a  cause  for  both 
absolute  and  limited  divorce ;  in  others  only  limited 
divorces  can  be  granted. 

Desertion  is  a  husband's  or  a  wdfe's  wilfully 
and  wrongfully  ceasing  to  cohabit  with  his  wife  or 

360 


DIVORCE 

her  husband.  To  establish  desertion  three  things 
must  be  shown :  (  1  )  Cessation  from  cohabitation 
continuing  the  necessary  time;  (2)  the  intention  in 
the  mind  of  the  deserter  not  to  resume  cohabitation ; 
(3)  the  absence  of  the  other  party's  consent  to  the 
separation,  or  conduct  justifying  the  same.  The 
mere  fact  that  the  parties  are  Hving  apart  does  not 
even  raise  a  presumption  of  desertion,  but  voluntary 
living  apart  is  in  some  states  a  separate  cause  for 
divorce.  Living  apart  by  consent  is  not  a  ground 
for  divorce  as  desertion.  But  if  continued  for  five 
years  it  is  a  cause  for  divorce  in  Kentucky  and  Wis- 
consin. Refusal  of  marriage  intercourse  is  not 
desertion;  neither  is  absence,  unless  the  absent 
party's  intent  to  desert  is  shown,  and  it  is  sometimes 
made  a  separate  cause  for  divorce  also.  Absence 
unheard  of  for  seven  years  is  a  cause  for  divorce  in 
Connecticut  and  Vermont,  and  for  three  years  in 
New  Hampshire.  A  separation  caused  by  a  party's 
imprisonment  is  not  desertion,  because  it  may 
be  involuntary;  and  it  has  been  made  a  sepa- 
rate cause  for  divorce.  The  above  definition  should 
be  qualified  by  the  statement  that  one  who  wrong- 
fully drives  his  or  her  spouse  away  is  the  deserter. 
This  matter  will  be  discussed  later  on. 

One  of  the  elements  of  the  desertion  is  that  the 
parties  must  have  separated;  there  must  be  a  ces- 
sation of  cohabitation.  Ceasing  to  cohabit  means 
ceasing  to  live  together  as  husband  and  wife — ceas- 
ing to  have  a  common  home.  For  an  absolute  and 
unjustified  refusal  to  allow^  such  intercourse  has 
been  held  not  to  constitute  desertion,  and  the  fact 
that  there  was  a  single  night  of  intercourse  during 
the  period  of  the  wife's  persistent  refusal  to  make 
her  home  with  her  husband  has  been  held  not  to 
break  the  continuity  of  her  desertion.  But,  on  the 
other  hand,  an  offer  by  a  husband  to  take  his  wife 

361 


WOMAN  UNDER  THE  LAW 

back  into  his  house  but  not  to  his  bed  has  been  held 
not  an  offer  to  renew  cohabitation.  The  question 
of  support  is  not  involved  in  the  questions  relating 
to  desertion,  unless  under  the  provisions  of  some 
particular  statute.  For  if  a  husband  refuses  to  live 
with  his  wife,  he  does  not,  by  supporting  her,  pre- 
vent his  separation  from  being  desertion;  and  his 
refusal  to  support  her  is  not  in  itself  desertion,  nor 
does  it  change  the  character  of  a  separation. 

The  separation  must  continue  uninterruptedly 
for  the  necessary  time.  This  time  begins,  the  sepa- 
ration existing  w^hen  the  intent  to  desert  is  formed, 
and  runs  on,  no  matter  w^here  the  parties  may  be, 
as  long  as  they  are  apart;  but  it  does  not  run  during 
the  complainant's  consent  to  separation,  or  w^hile 
this  is  due  to  the  complainant's  fault.  If  cohabita- 
tion is  renewed  for  a  time  and  then  the  parties  sepa- 
rate again,  the  periods  before  and  after  the  renewal 
cannot  be  added  together.  But  though  the  parties 
are  apparently  together  for  a  time  this  is  not  a 
renewal  of  cohabitation  if  the  intent  to  desert  con- 
tinues. Thus,  a  wife's  return  to  the  family  home 
from  time  to  time  to  look  after  the  children  and  to  at- 
tend to  certain  household  duties,  she  intending  all 
the  w^hile  not  to  resume  cohabitation,  does  not  break 
the  course  of  the  desertion;  nor,  under  similar  cir- 
cumstances does  sexual  intercourse.  On  the  other 
hand,  a  mere  offer  to  resume  cohabitation  made  by 
the  deserting  party  in  good  faith  and  unconditionally 
and  before  the  full  statutory  period  of  the  desertion 
has  elapsed,  stops  the  desertion  and  prevents  a 
divorce  for  this  cause.  The  offer  must  be  made  in 
good  faith;  it  must  be  unconditional,  and  it  must  be 
made  before  the  desertion  has  lasted  long  enough 
to  constitute  a  cause  for  divorce.  It  is  possible  for 
a  husband  to  live  in  the  same  house  w^ith  his  w^ife 
and  yet  so  seclude  himself  from  her  as  to  desert  her. 

362 


DIVORCE 

The  husband's  home  is  the  matrimonial  home 
and  the  home  of  the  wife.  He  has  the  right  to  say- 
where  they  shall  both  live;  and  he  may  change  his 
residence  as  often  as  his  business,  health,  or  pleas- 
ure demands,  and  she  must  follow;  if  she  does  not, 
she  deserts  him, — presupposing,  of  course,  that  the 
husband  is  not  in  fault,  as  hereafter  shown.  So,  if 
the  wife  undertakes  to  change  the  family  residence 
and  the  husband  will  not  follow  she  deserts  him.  It 
is  not,  how^ever,  an  entirely  arbitrary  power  which 
the  husband  may  exercise  in  this  matter;  his  acts 
must  be  reasonable  and  in  good  faith.  While  w^e 
must  recognize  fully  the  right  of  the  husband  to 
direct  the  affairs  of  his  own  house  and  to  determine 
the  place  of  abode  of  the  family  and  that  it  is  in 
general  the  duty  of  the  wife  to  submit  to  such  deter- 
mination, he  must  exercise  reason  and  discretion 
in  regard  to  it.  If  there  is  any  ground  to  conjecture 
that  the  husband  requires  the  w^ife  to  reside  where 
her  health  or  her  comfort  w^ill  be  jeopardized,  or 
even  where  she  seriously  believes  such  results  will 
follow^  as  w^ill  almost  necessarily  produce  the  effect, 
and  it  is  only  upon  that  ground  that  she  separates 
from  him,  the  court  cannot  regard  her  desertion  as 
continued  from  mere  w^ilfulness. 

The  second  element  of  desertion  is  the  intent 
to  desert;  the  defendant's  absence  must  be  wilful, 
it  must  be  intended  to  be  permanent,  and  this  intent 
must  continue  the  statutory  time.  By  "wilful"  it 
is  not  meant  that  the  desertion  must  be  malicious  in 
fact,  but  something  more  than  mere  indifference 
must  be  show^n.  The  separation  must  be  deliberate ; 
and  a  separation  where  the  husband's  absence  is 
due  to  imprisonment,  or  to  sickness,  or  under  cir- 
cumstances where  a  presumption  of  death  is  raised, 
is  therefore  not  desertion. 

Again,  if  the  party  who  has  left  the  other  is 

363 


WOMAN  UNDER  THE  LAW 

looking  forward  to  a  renewal  of  cohabitation,  as 
w^here  he  or  she  is  absent  on  business,  or  where 
there  are  pending  treaties  for  a  renewal  of  cohabita- 
tion, there  is  no  desertion.  Still,  a  woman's  refusal 
to  cohabit  "under  existing  circumstances"  her  hus- 
band being  poor,  is  a  permanent  enough  intent. 

Therefore,  if  the  intent  to  desert  does  not  exist 
w^hen  the  separation  takes  place,  the  desertion  be- 
gins only  from  the  time  that  such  intent  is  formed. 
So  it  usually  ceases  when  the  intent  to  desert  stops. 
But  if  it  exists  w^hen  the  separation  takes  place,  the 
desertion  does  not  cease  because  the  deserting  party 
becomes  insane  or  is  in  prison. 

In  the  case  of  a  separation,  that  party  is  the 
deserter  who  has  the  intent  to  desert,  no  matter 
w^hich  one  leaves  the  matrimonial  home.  A  party 
who  drives  the  other  away  is  the  deserter.  A  hus- 
band who  gets  his  wife  to  go  aw^ay  on  a  visit,  and 
then  disappears,  deserts  her,  though  she  has  ap- 
parently left  him;  and  the  party  who  refuses  to 
receive  back  one  whose  desertion  has  begun,  but 
who  has  repented  and  asked  to  be  taken  back,  is  the 
deserter. 

A  separation  by  the  mutual  consent  of  the 
parties  is  not  desertion  by  either.  But  either  party 
may  revoke  such  consent;  and  if  the  other  party 
when  applied  to  refuses  to  renew  cohabitation,  it 
is,  from  the  time  of  such  refusal,  desertion  on  the 
part  of  said  party.  The  consent  need  not  be  ex- 
pressed; it  may  be  inferred  from  conduct. 

One  party  to  a  marriage  is  justified  in  leaving 
the  other  ( 1  )  by  the  latter's  consent,  express  or  im- 
plied; (2)  by  such  conduct  on  the  part  of  the  other 
as  is,  as  against  such  other,  a  cause  for  divorce ;  and 
perhaps  (3)  by  such  conduct  on  the  part  of  the 
other  as  is  cruel  and  outrageous,  though  not 
amounting  to  a  cause  for  divorce. 

364 


DIVORCE 

The  usual  and  correct  rule  is,  that  in  the  ab- 
sence of  consent,  express  or  implied,  one  party  is 
justified  in  leaving  the  other  only  by  conduct  which 
would  justify  a  suit  for  divorce.  Thus,  one  party 
may  leave  the  other  for  such  other's  adultery  or 
cruelty.  Likewise  during  a  suit  for  divorce.  A  wife 
need  not  live  with  her  husband's  mistress  but,  to 
follow  the  adjudicated  cases,  we  find  that  one  party 
cannot  leave  the  other  because  such  other  has  fits,  or 
will  not  occupy  the  same  bed,  or  gambles,  or  is  poor, 
or  is  a  drunkard,  or  is  charged  with  being  guilty  of 
crime  (this  being  no  cause  for  divorce),  or  in  case 
of  a  wife,  because  her  husband  will  not  make  the 
servants  mind  her,  or  will  not  live  with  her  father, 
or  allow  her  son  to  visit  her,  or  allow  her  to  go  to 
church,  or  because  she  fears  having  children,  or 
because  he  alone  cannot  satisfy  her  sexual  desires. 

The  allegations  must  set  forth  the  desertion 
substantially  in  the  phraseology  of  the  particular 
statute;  and  the  circumstances  of  the  desertion 
must  also  be  stated  with  some  particularity.  Thus 
an  allegation  of  wilful  desertion  for  more  than  one 
year  is  not  sufficient  under  a  statute  requiring  wil- 
ful, obstinate  and  continued  desertion.  Nor  is  "un- 
necessarily and  w^ithout  sufficient  cause"  sufficient 
for  "without  sufficient  cause  and  w^ithout  the  as- 
sent"; nor  is  abandonment  "more  than  three  years 
ago"  abandonment  "for  three  years  together,"  but 
the  law  is  not  as  strict  in  regard  to  desertion  as  it  is 
with  regard  to  adultery  and  cruelty. 

The  proof  must  substantially  conform  to  the 
allegations,  and  a  good  prima  facie  case  of  legal 
desertion  must  be  made  out.  The  separation  and 
the  intent  to  desert  must  therefore  aWays  be  shown 
by  the  complainant,  but  under  the  more  prevalent 
view  the  justification  for  separation  is  a  matter  of 
defense,  and  must  be  made  out  by  the  defendant. 

365 


WOMAN  UNDER  THE  LAW 

The  desertion  may  be  proved  by  a  great  variety  of 
circumstances,  and  under  statutes  the  peirties  may 
in  general  testify  themselves. 

The  defendant  may  deny  the  separation  or  the 
intent  to  desert,  or,  confessing  these,  may  make 
pleas  which  are  substantially  those  of  connivance, 
collusion,  condonation,  or  recrimination. 

As  has  already  been  shown,  drunkenness  is  not 
in  itself  a  cause  for  divorce  as  cruelty,  but  by  special 
statutes  it  is  in  itself,  if  habitual,  a  separate  ground 
for  divorce,  in  some  states  justifying  absolute 
divorce,  and  in  some  only  limited  divorce.  Most 
of  the  statutes  state  the  cause  simply  as  "habitual 
drunkenness";  some  require  it  to  have  been  ac- 
quired after  marriage;  some  to  continue  one,  tw^o, 
or  three  years.  The  Kentucky  statutes  connect  it 
with  "wasting  of  estate,"  which  includes  wasting  of 
time  and  health,  w^hen  that  is  the  man's  capital. 

There  must  be  both  drunkenness  and  a  habit. 
Drunkenness  is  in  this  sense  the  effect  of  alcoholic 
liquors,  not  of  opium  or  chloroform.  A  habit  is  the 
frequent  and  regular  occurrence  of  excessive  in- 
dulgence, or  getting  drunk  w^henever  exposed  to 
temptation,  or  being  usually  drunk  in  business 
hours,  or  being  drunk  for  tw^elve  or  fifteen  days  at 
a  time  four  or  five  times  a  year  for  fifteen  years  and 
generally  being  driven  to  drink  by  any  excitement. 
Sometimes  the  statute  requires  the  habit  to  have 
continued  for  a  certain  number  of  years.  If  the 
statute  is  silent  in  this  respect,  it  perhaps  makes  no 
difference  whether  the  habit  was  formed  before  or 
after  marriage,  though  this  proposition  is  open  to 
grave  doubt.  But  the  habit  must,  it  seems,  be  of 
such  a  character  as  to  render  the  marriage  state  in- 
tolerable. 

The  allegations  need  not  contain  particular 
facts;   it  is  sufficient  when  the  statutory  clause  is 

366 


DIVORCE 

"habitual  drunkenness,"  to  allege  it  in  those  words 
without  amplification.  Still,  it  is  always  better  to 
make  the  allegations  too  full  than  too  general. 

The  proof  in  such  cases  does  not  involve  any 
particular  difficulties.  What  is  habitual  drunken- 
ness is  a  question  of  law.  Witnesses  can  testify 
only  to  particular  facts.  Expert  testimony,  there- 
fore, is  inadmissable.  And  the  proof  should  cor- 
respond with  the  allegations. 

As  has  already  been  shown,  refusal  to  support 
is  not  a  cause  for  divorce,  as  cruelty,  or  as  desertion ; 
but  it  is  made  a  separate  ground  for  divorce  in  many 
states,  sometimes  alone  and  sometimes  connected 
with  desertion  or  bad  treatment.  In  some  states  it  is 
a  cause  for  absolute  and  in  some  for  limited  divorce. 

The  refusal  or  neglect  to  support  must  be  wil- 
ful, and  must  be  such  as  leaves  the  wife  destitute 
of  the  common  necessaries  of  life,  or  such  as  would 
leave  her  so  destitute  but  for  the  charity  of  others. 
And  the  refusal  must  be  of  something  which  the 
husband  has  or  might  get;  mere  honest  ability  to 
support  could  never  be  a  ground  for  divorce.  If  the 
husband's  failure  to  support  be  due  to  mental  or 
physical  weakness,  it  is  no  cause  for  divorce. 

The  allegations  may  be  in  the  general  terms  of 
the  statute. 

The  proof  of  particular  facts  may  be  made 
under  the  general  allegation,  but  neglect  to  provide, 
being  one  of  ability,  was  held  no  proof  of  neglect  to 
provide  on  account  of  idleness.  The  husband's 
ability  to  provide  must  be  affirmatively  show^n. 

The  effect  of  imprisonment  has  been  already 
discussed.  But  statutes  make  crime  of  various  de- 
grees a  separate  cause  for  divorce.  Instances:  "Ex- 
tremely vicious  conduct"  in  Maryland;  "gross  mis- 
behavior and  w^ickedness"  in  Rhode  Island;  "a 
crime  against  nature"  in  Alabama;    "sodomy  and 

367 


WOMAN  UNDER  THE  LAW 

bestiality"  in  England;  and  "infamous  crime  involv- 
ing the  violation  of  conjugal  duty,  and  punishable 
by  imprisonment"  in  Connecticut;  "fleeing  from  a 
charge  of  crime,  the  guilt  being  proved,"  in 
Louisiana. 

These  statutes  do  not  seem  to  have  given  rise 
to  any  questions,  though  it  has  been  held,  under  one 
of  them,  that  it  is  not  "gross  misbehavior"  for  a 
husband  to  have  a  deep  platonic  affection  for  a 
woman  other  than  his  wife. 

Insanity  existing  at  the  time  of  a  marriage  is  a 
ground  for  the  invalidity  thereof,  but  insanity  aris- 
ing after  marriage  is  not  a  cause  for  divorce  under 
any  other  head,  in  the  absence  of  special  statutes; 
and  such  a  statue  seems  to  exist  only  in  Arkansas. 

As  has  been  show^n,  one  person  may  be 
divorced  by  a  decree  and  the  other  still  be  married. 
To  obviate  this  condition  of  things  by  a  statute  in 
some  states,  a  divorce  may  be  granted  any  person 
whose  spouse  has  obtained  a  divorce  in  another 
state. 

As  has  already  been  somewhat  fully  shown,  it 
is  considered  contrary  to  natural  justice  to  proceed 
to  the  determination  of  a  suit  without  giving  both 
sides  an  opportunity  to  be  heard,  and  therefore  the 
statutes  of  all  states  provide  for  a  process  to  be  is- 
sued to  summon  resident  defendants  into  court,  and 
for  some  kind  of  notice  to  be  given  to  non-residents. 
We  have  also  seen  that  if  the  statutes  of  the  state  on 
this  subject  are  not  conformed  to,  a  decree  of 
divorce  will  be  void.  For  instance,  if  a  w^ife  is  living 
apart  from  her  husband  w^ithout  sufficient  cause,  his 
domicile  is  in  law  her  domicile;  and  in  the  absence 
of  any  proof  of  fraud  or  misconduct  on  his  part,  a 
divorce  obtained  by  him  in  the  state  of  his  domicile, 
after  reasonable  notice  to  her,  either  by  personal 
service   or  by  publication  in   accordance  with   its 

368 


DIVORCE 

laws,  is  valid,  although  she  never  in  fact  resided  in 
the  state.  But  in  order  to  make  the  divorce  valid, 
either  in  the  state  in  which  it  is  granted  or  in  another 
state,  there  must,  unless  the  defendant  appeared  in 
the  suit,  have  been  such  notice  to  her  as  the  law 
of  the  first  state  requires.  If  the  statutes  of  the  state 
are  conformed  to,  the  decree  will  be  valid  within 
the  state,  but  valid  or  void  w^ithout  the  state,  in  ac- 
cordance with  the  rules  of  international  and  inter- 
state law.  There  are  thus  two  kinds  of  notice :  (  1  ) 
notice  by  actual  service  of  process  w^ithin  the  juris- 
diction of  the  court,  which  gives  the  court  jurisdic- 
tion over  the  person  of  the  party  so  served;  and  (2) 
notice  by  publication,  and  advertisement,  through 
the  post-office,  which  gives  the  court  no  jurisdic- 
tion in  personam,  but  serves  only  to  make  the  pro- 
ceedings public,  and  to  satisfy  the  demands  of 
natural  justice,  in  order  that  the  court  may  pass  a 
decree  in  rem  respecting  things  within  its  jurisdic- 
tion. But  each  kind  of  notice  is  appointed  for  a 
special  class  of  cases,  and  cannot  be  used  for  other 
cases.  All  questions  of  notice  are  waived  by  volun- 
tary appearance. 

Under  the  statutes,  if  the  defendant  be  a 
resident  or  within  the  state,  there  must  be  actual  ser- 
vice of  process  in  strict  compliance  with  the  law. 
The  service  must  be  made  by  the  proper  party,  and 
in  the  proper  manner.  Service  is  good  although  the 
party  when  served  be  in  prison.  If  there  are  proper 
allegations  and  affidavit  that  the  defendant  is  about 
to  leave  the  state,  a  writ  ne  exeat  may  be  served  on 
him,  or,  in  New  York,  he  may  be  arrested. 

Under  the  statutes,  if  the  defendant  be  a  non- 
resident, a  notice  by  advertising  the  suit,  or  by 
publication,  or  by  mailing  a  copy  of  the  complaint 
to  his  address  or  his  last  address,  or  by  some  similar 
proceeding,    is    required.     And    legislatures    have 

369 


WOMAN  UNDER  THE  LAW 

power  to  allow  divorces  to  be  granted  though  no 
actual  notice  be  given.  Many  states  expressly  allow 
notice  of  this  kind  by  their  divorce  statutes,  and  a 
statute  referring  to  all  suits  will  be  held  to  include 
divorce  suits.  Under  the  statutes,  the  bill  must  al- 
lege that  the  defendant  is  a  non-resident,  as  tem- 
porary absence  on  a  voyage  will  not  suffice,  nor  will 
the  fact  that  the  defendant  is  in  prison.  And  this 
must  appear  by  affidavit  or  other  proof ;  a  return  of 
non  est  from  two  counties  is  not  enough.  If  pub- 
lication has  been  duly  made,  the  court  must  proceed 
to  a  decree.  If  it  has  been  obtained  by  false  affida- 
vits, it  is  of  no  effect,  and  the  judgment  will  be  set 
aside  for  fraud.  These  statutes  are  construed  as  are 
similar  statutes  relating  to  other  suits.  It  is  disputed 
whether  in  the  case  of  an  amendment  to  the  com- 
plaint after  publication  a  new  publication  is  neces- 
sary. 

The  defendant  having  been  duly  summoned, 
or  publication  having  been  duly  made,  if  there  is  no 
appearance  or  defence,  the  court  may  enter  a 
default,  take  testimony  ex  parte,  and  grant  a  divorce 
in  accordance  with  the  statutes.  Such  divorce  will 
be  valid  within  the  state,  and  extra-territorially  so 
far  as  it  is  in  accordance  v«rith  the  international  and 
interstate  law,  as  already  discussed.  Whether  a 
decree  of  divorce  obtained  by  publication  may,  as 
other  equity  decrees,  be  subsequently  reopened  by  a 
defendant  who  had  no  actual  notice,  is  disputed. 

When  a  bill  has  been  filed,  and  the  de- 
fendant has  been  notified  by  summons  or  publica- 
tion, he  should  appear  and  file  his  answer,  plea, 
or  demurrer.  The  answer  need  not  usually  be 
sworn  to  and  is  not  in  itself  effective  as  evidence. 
In  the  answer  the  defendant  may  deny  the  charges 
and  set  up  the  several  defences,  or  he  may  admit  the 
charges  and  confess  the  bill.     As  many  defences  as 

370 


DIVORCE 

he  desires  to  make  may  be  joined  in  the  same 
answer.  The  answer  may  be  amended  and  new 
defences  set  up.  And  a  general  denial  has  some- 
times been  held  to  cover  all  the  defences.  The 
answer  may  take  the  form  of  a  cross  bill.  The 
answer  of  a  third  party  defendant  should  confine 
itself  entirely  to  the  charges  against  such  third  party. 
The  practice  of  the  ecclesiastical  and  the  equity 
courts  should  be  followed. 

If  the  defendant  does  not  answer,  but  allows 
the  case  to  go  by  default,  the  suit  is  settled  as  ageunst 
him,  but  not  as  against  the  state,  and  it  does  not 
entitle  the  complainant  to  a  divorce.  The  court 
may  take  off  a  default  and  allow  the  defendant  to 
answer.  But  while  a  default  exists,  the  defendant 
can  take  no  part  in  the  suit,  save  as  an  amicus 
curiae.  The  default  being  entered  the  case  goes  on, 
and  proof  must  be  taken;  and  a  divorce  will  be 
granted  only  if  a  good  cause  is  made  out  and  no 
defence  appears. 

If  the  defendant  answers  but  merely  confesses 
the  bill  and  consents  to  a  decree,  the  case  must 
nevertheless  proceed  just  as  if  there  had  been  a 
default,  for  the  state  is  a  party,  and  a  marriage  can- 
not be  dissolved  by  consent  of  the  husband  and 
wife.  The  parties  may,  however,  dismiss  the  suit 
by  consent  as  the  complainant  has  the  right  to  par- 
don all  and  any  offences. 

Cross-bills  have  already  been  somewhat  dis- 
cussed. The  cross-bill  may  set  up  a  cause  for 
divorce  against  the  complainant,  but  the  charges  of 
the  original  bill  must  be  at  the  same  time  denied. 
The  answer  thus  plays  a  double  part,  and  the  case 
made  out  by  the  cross  bill  may  be  prosecuted  even 
after  the  original  bill  has  been  dismissed.  The  cross- 
bill in  turn  should  be  ansv/ered. 

Besides  the  denial  of  the  acts  complained  of, 

371 


WOMAN  UNDER  THE  LAW 

there  are  five  recognized  defences  to  an  action  for 
divorce,  as  follows :  ( I  )  Connivance,  or  the  com- 
plainant's consent  to  the  acts  complained  of;  (2) 
collusion,  or  the  agreement  of  the  parties  to  make  up 
the  case  for  the  purpose  of  obtaining  a  divorce;  (3) 
condonation,  or  the  complainant's  forgiveness  of 
the  acts  complained  of;  (4)  recrimination,  or  the 
fact  that  the  defendant  has  a  cause  of  divorce  against 
the  complainant;  (5)  delay  or  limitation,  or  that  the 
complainant  has  suffered  an  unreasonable  time,  or  a 
time  limited  by  statute,  to  elapse  since  the  occur- 
rence of  the  acts  complained  of.  These  defences  are 
all  consistent  with  a  general  denial. 

These  defences  existed  under  the  old  ecclesias- 
tical law^,  and  are  recognized  in  the  divorce  courts  of 
the  United  States  independently  of  statute.  But 
now  in  England,  and  in  many  states,  statutes  wholly 
or  partially  cover  the  subject.  The  trouble  about 
the  matter  is,  that  so  many  new^  causes  for  divorce 
have  been  introduced  that  it  is  hard  to  know  how  far 
these  defences  will  apply  to  them,  as  they  originally 
wholly  applied  only  to  adultery,  and  partially  to 
cruelty.  It  w^ill  be  found,  how^ever,  that  the  prin- 
ciples underlying  these  defences  are  nearly  every- 
where applicable,  which  principles  must  now  be  ex- 
plained. Connivance  and  collusion  both  involve 
the  prior  consent  of  the  complainant  to  the  acts 
complained  of,  and  are  defences  upon  the  general 
principle,  volenti  non  fit  injuria.  Collusion  differs 
from  connivance  in  being  confined  to  cases  where 
the  consent  is  mutual,  and  where  the  purpose  is  to 
obtain  a  divorce  by  the  pretence  or  act  agreed  upon. 
Condonation  is  forgiveness  or  subsequent  consent, 
and  if  too  readily  given  may  amount  to  connivance 
to  future  offences.  Recrimination  is  a  defence  be- 
cause the  courts  will  not  give  relief  to  a  guilty  pcirty, 
and  because  endless  complications  would  arise  if 

372 


DIVORCE 

the  husband  and  wife  could  both  be  entitled  to  a 
divorce  at  the  same  time.  Lapse  of  time  is  a  defence 
because  it  raises  a  presumption  of  acquiescence  or 
consent. 

Other  so-called  defences  can  all  be  brought 
under  these  heads.  For  example,  an  agreement  to 
withdraw  or  compromise  a  suit  is  no  defence,  unless 
it  amount  to  condonation  or  collusion.  So  a  deed 
of  separation,  while  a  defence  to  a  suit  for  desertion, 
is  no  defence  to  a  suit  for  adultery,  unless  made  with 
a  view  to  future  intercourse,  in  which  case  it 
amounts  to  connivance. 

The  fact  that  a  party  has  become  insane  after 
commiting  the  offense  is  no  defence,  but  no  divorce 
can  be  granted  against  a  party  who  is  dead. 

As  a  general  rule,  the  defences  should  be  set 
up  in  the  answer  with  all  the  particularity  required 
of  allegations  in  a  complaint ;  but  there  are  two  ex- 
ceptions to  this  rule.  First,  the  bill  of  complaint 
(and  indeed  the  proof)  must  not  exhibit  that  there 
is  a  good  defence,  or  the  divorce  will  be  refused 
though  the  defences  be  not  pleaded;  and  second, 
there  is  a  usual  practice  in  some  states  by  which  the 
complainant  is  required  in  his  bill  to  negative  the 
defences,  and  if  this  is  not  done  the  defendant  may 
have  the  bill  dismissed. 

The  proof  of  the  defences  does  not  involve 
special  difficulties.  It  should  correspond  with  the 
allegations;  and  although  in  some  states  any  de- 
fences could  be  proved  under  the  general  issue, 
generally  the  defences  should  be  specially  alleged. 
When  the  defendant  must  allege  the  defences,  he 
must  prove  them.  Connivance  and  collusion  are 
disgraceful,  and  must  be  strictly  proved;  condona- 
tion may  be  even  commendable,  and  such  strict- 
ness is  not  required.  In  recrimination  the  counter- 
charge must  be  proved  just  as  it  would  if  a  charge. 

373 


WOMAN  UNDER  THE  LAW 

Connivance  is  the  complainant's  consent  to  the 
commission  of  the  acts  complained  of.  It  may  be 
active,  as  where  the  complainant  has  brought  about 
the  act ;  or  passive,  as  where  the  complcdnant,  after 
due  notice  or  w^arning,  has  taken  no  steps  to  prevent 
it.  The  defence  w^hich  in  law  and  reason  is  avail- 
able to  the  party  as  the  fullest  contradiction  of  fact 
is,  that  the  husband  himself  v/as  the  author  and  ac- 
complice of  the  crime;  that  he  has  practised  a  train 
of  conduct  which  led  to  her  guilt,  and  which  he  fore- 
saw and  intended  should  lead  to  it;  that  he  is,  there- 
fore, not  the  object  of  relief  which  the  law  gives  to 
the  innocent  only.  The  conduct,  then,  upon  which 
the  wife  relies  for  her  defence  is  of  a  passive  and 
permissive  kind,  to  be  proved  therefore  by  circum- 
stances. Active  conspiracy  appears  in  overt  acts, 
but  unless  there  are  declarations  to  establish  it,  con- 
nivance must  in  general  depend  upon  circum- 
stances, and  is  to  be  gathered  from  a  train  of  con- 
duct which  the  court  is  to  interpret  as  well  as  it  can. 
An  extreme  case  of  connivance  was  sho^vn  in  a 
New  Hampshire  case  where  a  husband  sold  a  night 
with  his  w^ife  for  a  scythe  and  snath.  In  a  case  of 
connivance  where  a  husband  introduces  a  notorious 
debaucher  to  his  wife,  intending  that  she  may  be 
seduced,  the  mere  fact  of  such  introduction  by  him 
raises  a  presumption  of  intent  that  she  shall  be 
seduced.  A  husband  who  consents  to  the  adultery 
of  his  wife  cannot  make  her  criminal  act  a  ground 
for  divorce.  His  consent  bars  his  right  to  the  decree. 
And  a  husband  who  endeavors  to  procure  his  wife 
to  be  hired  into  the  commission  of  adultery  will  be 
regarded  as  consenting  to  all  subsequent  acts  of 
adultery  she  may  commit,  whether  they  be  com- 
mitted with  the  person  selected  by  him  or  with 
others.  So  it  is  when  the  husband  gets  a  friend  or 
agent  to  lead  or  entrap  his  w^ife  into  adultery.    It  will 

374 


DIVORCE 

be  seen,  therefore,  that  the  defence  of  connivance  is 
based  on  the  maxim  volenti  non  fit  injuria,  and  on 
the  principle  that  to  one  who  consents,  no  wrong 
is  done  and  no  redress  is  due.  A  husband's  consent 
is  presumed  if  he  knowingly  allows  familiarity  such 
as  usually  leads  to  sexual  intercourse.  But  the  hus- 
band's conduct  must  be  the  result  of  his  depraved 
morals,  and  not  simply  of  his  innocence  or  bad 
judgment,  or  his  blindness  resulting  from  trusting 
affection. 

Connivance  as  a  defence  is  particularly  ap- 
plicable to  a  charge  of  adultery;  so  it  has  been  ap- 
plied to  a  charge  of  drunkenness,  when  the  com- 
plainant had  supplied  the  liquor.  In  principle,  if 
not  in  name,  it  is  applicable  to  desertion,  as  no 
divorce  will  be  granted  for  this  cause  if  it  appears 
that  the  apparently  guilty  party  has  left  the  other 
with  the  other's  consent  or  through  the  other's  fraud 
or  force;  also,  to  cruelty,  as  w^here  a  wife  inten- 
tionally provokes  or  tantalizes  her  husband  to  mis- 
conduct. 

The  allegation  of  connivance  is  not  strictly  re- 
quired, the  public  is  a  party,  and  the  court  w^ould 
make  the  objection  though  the  defendant  does  not, 
if  the  facts  are  brought  to  its  notice.  Still,  it  is  bet- 
ter to  allege  it  except  in  those  states  where  the  com- 
plainant is  required  to  negative  it  in  the  complaint. 
A  plea  of  connivance  is  consistent  with  a  general 
denial. 

The  proof  of  connivance,  especially  in  cases  of 
adultery,  must  be  very  strict,  as  every  presumption 
is  against  a  husband  being  so  debased  as  to  consent 
to  his  wife's  adultery.  It  cannot  be  readily  pre- 
sumed that  any  husband  w^ould  act  so  contrary  to 
the  general  feelings  of  mankind  as  to  be  a  consent- 
ing party  to  his  ov/n  dishonor,  the  effect  of  which 
would  be  to  leave  him  legally  bound  for  life  to  a 

375 


WOMAN  UNDER  THE  LAW 

corrupt  and  adulterous  wife.  The  proof  need  not 
be  of  connivance  at  the  special  acts  complained  of ; 
general  connivance  will  suffice.  There  must  be 
proof  of  knowledge  of  adultery  or  of  improper 
familiarities.  What  amounts  to  proof  of  actual 
know^ledge  and  concurrence  is  a  question  w^hich 
depends  on  the  circumstances  of  each  particular 
case.  Indifference,  ill-behavior,  or  cruelty,  is  not 
evidence  of  connivance.  But  want  of  attention  to  a 
w^ife's  morals,  to  her  conduct  and  associates,  may 
be;  as  where  a  husband  with  perfect  indifference 
allow^ed  his  wife  to  live  with  another  man,  and  have 
children  by  him. 

Collusion  is  the  agreement  of  the  parties  to 
make  up  a  case  for  the  purpose  of  obtaining  a 
divorce.  It  may  be  active,  as  where  a  husband 
agrees  that  he  will  commit  adultery,  that  his  wife 
may  apply  for  and  get  a  divorce  from  him;  or  pas- 
sive, as  where  the  understanding  is  that  the  defend- 
ant shall  suppress  facts  which  might  constitute  a 
good  defence.  By  way  of  amplification  it  may  be 
said  that  collusion,  as  applied  to  this  subject,  is  an 
agreement  between  the  parties  for  one  to  commit  or 
appear  to  commit  a  fact  of  adultery  in  order  that  the 
other  may  obtain  a  remedy  at  law^  as  for  a  real  in- 
jury. Real  injury  there  is  none,  where  there  is  a 
common  agreement  between  the  parties  to  effect 
their  object  by  fraud  in  a  court  of  justice.  If  such 
conduct  were  permissible,  it  would  authorize  parties 
to  violate  their  marriage  vows  and  w^ould  encourage 
profligate  and  dissolute  manners.  The  law,  there- 
fore, requires  that  there  shall  be  no  co-operation  for 
such  a  purpose,  and  does  not  grant  a  remedy  where 
the  adultery  is  committed  with  any  such  view.  It 
is  a  fraud  difficult  of  proof,  since  the  agreement  may 
be  known  to  no  one  but  the  two  parties  in  the  cause, 
who  alone  may  be  concerned  in  it,  for  the  adulterer 

376 


DIVORCE 

may  be  ignorant  of  the  understanding.  However, 
it  is  no  decisive  proof  of  collusion  that  after  the 
adultery  has  been  committed  both  parties  desire  a 
separation;  it  would  be  hard  that  the  husband 
should  not  be  released  because  the  offending  wife 
equally  wishes  it;  it  would  be  unjust  that  the  hus- 
band should  depend  on  her  inclinations  for  his  re- 
lease; he  has  a  right  to  it. 

Making  up  a  fictitious  case  of  any  kind  is  a 
contempt  of  court. 

Divorces  are  granted  on  public  ground,  and 
not  to  suit  the  desires  of  individuals.  To  constitute 
collusion,  however,  the  parties  must  be  acting  in 
concert,  and  some  imposition  upon  the  court  must 
be  the  purpose  or  result.  Thus,  while  it  is  not  col- 
lusion for  a  husband  to  support  his  wife  during  the 
suit,  or  for  the  wife  to  assist  the  proofs  against  her- 
self, it  is  if  the  husband  allows  his  wife  support  for 
her  silence  as  to  certain  matters  which  might  injure 
his  case.  Friendliness  in  carrying  on  the  suit  or 
even  mutual  assistance  in  proving  the  actual  facts 
is  not  collusion.  If  the  parties  have  made  up  a  false 
case,  or  kept  back  evidence  which  might  be  a  good 
defense,  it  is  collusion.  And  likewise  if  one  of  the 
p>arties  has  committed  the  act  complained  of  on  the 
understanding  that  it  should  be  made  a  ground  for 
divorce.  If  a  party  to  a  suit  by  agreement  with  the 
other  party  procures  the  withdrawal  from  the  notice 
of  the  court  of  facts  relevant  to  the  charge  w^hich  is 
imputed  to  him  or  her,  that  is  collusion. 

Collusion  as  a  defense  does  not  materially 
differ  from  connivance,  and  is  a  defense  applicable 
to  any  case. 

As  to  the  allegation  of  collusion,  the  same  rules 
apply  as  those  referred  to  under  connivance. 

The  proof  of  collusion  must  be  clear;  it  can- 
not   be    assumed    from    mere    suspicious    circum- 

377 


WOMAN  UNDER  THE  LAW 

Stances;  and  the  defendant's  confession  of  the 
charge  is  no  proof  of  collusion. 

Condonation  is  the  forgiveness  by  the  com- 
plainant of  the  act  complained  of,  on  conditions 
performed  by  the  defendant.  Condonation  thus  in- 
volves an  act  on  the  part  of  both  parties. 

The  forgiveness  ( 1 )  may  be  express  or  im- 
plied; (2)  it  must  be  accepted ;  (3)  it  must  be  freely 
given;  (4)  it  must  be  given  with  knowledge  of  the 
delinquent's  guilt. 

The  forgiveness  may  be  expressed,  as  "I  for- 
give you";  or  implied  as  from  sexual  intercourse 
after  knowledge  of  the  offence. 

The  forgiveness  must  be  accepted,  for  a  mere 
rejected  proposal  to  forgive,  or  w^illingness  to  for- 
give, would  not  suffice.  There  must  be  an  accept- 
ance on  the  part  of  the  delinquent  showing  repent- 
ance and  an  intention  to  "sin  no  more." 

The  forgiveness  must  be  freely  given,  and  not 
obtained  by  force,  or  fraud  and  misstatements,  or 
false  promises. 

The  forgiveness  must  be  given  advisedly;  the 
conduct  alleged  to  have  been  forgiven  must  have 
been  known.  Suspicion  without  proof  is  not  suffi- 
cient knowledge;  and  forgiveness  of  one  act  is  not 
forgiveness  of  others  not  known  or  suspected. 

The  forgiveness  is  alw^ays  conditional.  The 
condition  may  be  expressed,  as  that  the  delinquent 
shall  cease  all  correspondence  with  his  paramour; 
or  it  may  be  implied,  for  the  law  always  implies  the 
condition  that  there  shall  be  no  just  cause  for  com- 
plaint in  the  future,  or,  as  commonly  stated,  that 
the  delinquent  shall  treat  the  condoning  party  with 
conjugal  kindness. 

If,  therefore,  after  forgiveness  of  the  defence 
charged,  the  defendant  has  given  the  complainant 
no  just  cause  for  complaint,  the  forgiveness  will  be 

378 


DIVORCE 

a  good  defence,  but  if  the  condition  is  broken  it  will 
be  no  defence. 

As  a  defence,  condonation  is  applicable  to  a 
charge  of  adultery,  and  of  cruelty,  and,  in  principle, 
to  other  causes  for  divorce. 

The  allegation  of  the  defence  of  condonation, 
like  that  of  other  defences,  should  properly  be  made 
by  the  defendant,  though  in  some  states  it  must  be 
negatived  in  the  bill  of  complaint,  and  if  it  is  made 
know^n  to  the  court,  no  divorce  will  be  granted  in 
spite  of  its  not  appearing  on  the  pleadings.  So  that 
no  divorce  will  be  granted  if  it  appears  that  the 
parties  have  cohabited  since  the  institution  of  the 
suit. 

The  proof  of  condonation  need  not  be  as  strict 
as  the  proof  of  connivance,  as  the  former  is  not  a 
base  and  criminal,  but  often  a  generous  and  noble, 
act.  Still  it  must  be  clearly  shown  that  the  com- 
plainant freely  forgave  the  offense,  and  knew  of 
the  offense.  Such  knowledge  may  be  circumstan- 
tially proved.  Condonation  is  a  fact  for  the  jury  to 
find  under  instructions.  It  may  be  proved  under  the 
general  issue. 

Recrimination  is  a  counter-charge  by  the  de- 
fendant of  a  cause  for  divorce  against  the  complain- 
ant. When  each  party  has  a  cause  for  divorce 
neither  can  obtain  one. 

Any  cause  for  divorce  is  generally  a  good 
defence  against  any  other.  Under  the  ecclesiastical 
law  recrimination,  as  such,  was  applied  only  in  a 
case  of  adultery  against  adultery;  but,  as  has  been 
seen,  separation  was  no  cause  for  divorce  as  deser- 
tion if  justified  by  adultery  or  cruelty  and  cruelty 
was  no  cause  for  divorce  if  both  parties  were  equally 
to  blame.  So  that  in  effect  the  then  known  causes 
for  divorce  destroyed  each  other.  And  statutes 
upon  this  subject  have  been  held  to  be  declaratory 

379 


WOMAN  UNDER  THE  LAW 

of  the  common  law,  but  whether  they  abolish  adul- 
tery as  an  offense  in  other  cases  by  making  it  an 
offense  when  the  charge  is  adultery,  is  disputed;  and 
a  statute  making  "like  offense"  a  defence,  means 
thereby  an  offense  which  is  likewise  a  cause  for 
divorce.  So  that  generally  under  the  statutes  any 
cause  for  divorce  is  a  defence  against  any  other, 
even  though  they  be  causes  for  different  kinds  of 
divorce. 

And  the  defence  of  recrimination  is  thus  an 
almost  universal  one. 

The  allegation  of  the  counter-charge  in  re- 
crimination should  be  made  with  the  same  particu- 
larity required  of  the  same  cause  as  the  ground  for 
divorce.  And  it  may  be  alleged  consistently  with 
a  general  denial.  And  this  plea  may  be  put  in  at 
any  stage  of  the  case;  if  the  offense  has  occurred 
after  the  filing  of  the  answer  it  may  be  set  up  in  any 
supplemental  answer. 

The  proof  of  the  counter-charge  in  recrimina- 
tion must  be  the  same  as  that  required  to  prove  the 
charge;  and  the  proof  must  make  out  what  as  a 
charge  would  be  valid  ground  for  divorce.  Thus 
adultery  committed  by  an  insane  party  is  no  de- 
fence. Nor  is  refusal  to  have  sexual  intercourse. 
Nor  is  desertion  which  has  not  lasted  long  enough 
to  be  a  ground  for  divorce.  Nor  is  an  offense  which 
has  been  condoned.  Recrimination  against  a  wife 
suing  for  divorce  on  account  of  cruelty  was  estab- 
lished in  Texas  by  the  fact  that  in  one  of  the  alterca- 
tions she  had  knocked  her  husband  down  and  beaten 
him  severely. 

Lapse  of  time  betv/een  the  commission  of  the 
offense  complained  of  and  the  institution  of  the  suit 
may  constitute  a  defence  independently  of  statute 
or  by  virtue  of  the  statute.  In  the  former  case  it  is 
prima  facie  evidence  of  connivance,  collusion,  or 

380 


DIVORCE 

condonation ;  in  the  latter  it  is  the  defence  of  limita- 
tions. 

Lapse  of  time  is  not  in  itself  a  bar  to  an  applica- 
tion for  divorce,  independently  of  statute;  but  if 
unreasonable,  it  raises  a  presumption  of  consent  or 
acquiescence,  which  presumption  may  be  rebutted. 
Thus,  where  a  man  returns  home  and  found  his  wife 
living  in  adultery  with  another  man,  and  makes  no 
complaint  for  twenty  years  afterwards  he  was  held 
barred.  Unreasonable  delay  is  such  delay  as  makes 
it  appear  that  the  petitioner  is  insensible  of  the  in- 
jury of  which  he  complains. 

Two  years  unexplained  delay  has  been  held  a 
bar,  and  nineteen  years  delay  has  been  satisfactorily 
explained. 

In  many  states  there  are  statutes  requiring  a 
suit  for  divorce  to  be  brought  within  specified  times 
after  the  accrual  of  the  cause.  Such  statutes  apply 
only  to  the  causes  named.  The  time  begins  to  run 
when  the  cause  for  divorce  is  first  known,  and  runs 
on  though  the  offense  is  repeatedly  committed. 

No  divorce  can  be  granted  on  the  mere  plead- 
ings by  default,  or  by  consent,  but  only  after  full 
and  satisfactory  proof  of  all  the  essential  allegations 
on  which  the  right  to  release  is  founded.  In  this 
respect  a  divorce  suit  differs  from  the  great  majority 
of  actions,  and  is  like  proceedings  in  equity  relating 
to  the  lands  of  infants  or  insane  persons.  Proof  was 
thus  required  by  the  unw^ritten  law,  and  is  in  most 
states  also  required  by  statutes.  Consult  the  sta- 
tutes of  the  particular  state. 

A  suit  for  divorce  is  a  proceeding  sui  generis. 
It  is  partly  a  suit  in  equity,  partly  a  suit  in  the  eccle- 
siastical court,  partly  a  civil  suit,  and  partly  a  crim- 
inal prosecution.  The  rules  of  evidence  are  there- 
fore somewhat  obscured.  But  the  general  prin- 
ciples of  civil  suits,  rather  than  those  of  criminal 

381 


WOMAN  UNDER  THE  LAW 

proceedings,  apply.  The  party  charged  with  the 
offense  must  be  presumed  innocent  until  proven 
guilty ;  and  the  burden  of  proof  is  on  the  complain- 
ant to  prove  his  case  by  a  preponderance  of  the 
evidence;  and  the  graver  the  offense  charged,  the 
stricter  is  the  proof  required.  The  proof  should  cor- 
respond with  the  allegations ;  proof  without  allega- 
tions is  in  many  matters  w^orth  no  more  than  allega- 
tions without  proof.  It  is  not  sufficient  that  the 
court  should  be  morally  convinced  of  the  guilt  of 
the  defendant;  it  must  be  satisfied  that  such  con- 
viction is  founded  on  legal  evidence  applicable  to 
legal  charges. 

As  already  stated,  a  divorce  cannot  be  granted 
by  consent;  and  as  w^ill  be  explained  farther  on,  in 
most  states  the  parties  to  a  divorce  suit  cannot  them- 
selves always  testify ;  but  the  confessions  and  admis- 
sions of  the  parties  are  often  admissible  as  evidence, 
though  in  some  states  by  statute  and  in  some  by  the 
settled  practice,  no  divorce  will  be  granted  on  such 
confessions  or  admissions  alone.  But  when  a  con- 
fession is  full,  confidential,  reluctant,  free  from 
suspicion  of  collusion,  and  corroborated,  it  is  the 
safest  kind  of  evidence.  A  confession  obtained  by 
fraud  will  not  be  given  any  weight. 

Evidence,  if  relevant,  will  not  be  excluded  on 
account  of  its  indecency.  Although  courts  may  not 
refuse  to  consider  details,  however  offensive  and 
disgusting,  if  they  become  necessary  in  the  course 
of  investigation,  yet  they  should  always  require  the 
witnesses  to  be  examined  in  a  spirit  of  due  delicacy, 
avoiding  vulgar  and  obscene  language.  So,  if  com- 
petent to  testify  at  all,  a  w^ife  may  prove  excessive 
intercourse ;  it  is  public  policy  which  prevents  a  hus- 
band or  w^ife  from  proving  non-access,  and  not 
motives  of  decency. 

The  witnesses  must  testify  to  facts,  and  not  to 

382 


DIVORCE 

opinions  and  conclusions,  though  the  court  may  ask 
them  their  opinions.  The  opinions  of  experts  are 
admissible  in  cases  of  impotence  and  insanity,  but 
not  in  cases  of  habitual  drunkenness.  The  widest 
latitude  is  allowed  in  cross-examining  w^itnesses  in 
divorce  cases. 

At  common  law  the  husband  or  wife  could  not 
testify  for  or  against  the  other  in  any  case,  and  this 
law  prevails  in  the  United  States,  so  far  as  not  modi- 
fied by  statute.  It  is  not  affected  by  the  statutes 
destroying  the  incapacity  arising  from  interest,  for 
this  incapacity  depends  on  public  policy.  But  ex- 
press statutes  remove  this  incapacity  wholly  or 
partially  in  many  states.  Still  it  must  be  noted  that 
this  rule  excluding  the  husband  does  not  apply  to 
nullity  suits,  because  they  are  a  proceeding  betw^een 
parties  not  legally  husband  and  wife. 

The  testimony  of  young  children  is  admissible, 
but  is  not  entitled  to  much  weight.  It  is  exceedingly 
unsafe  to  grant  a  divorce  on  the  testimony  of  a 
young  child,  and  courts  are  not  disposed  to  en- 
courage the  blameworthy  practice  of  calling  chil- 
dren to  testify  against  a  parent.  In  some  states 
there  are  statutes  controlling  the  testimony  of  young 
persons.  Not  only  is  it  w^rong  to  the  child  to  ex- 
amine it  as  to  its  parent's  chastity,  but  owing  to  its 
immaturity,  its  evidence  is  likely  to  be  given  without 
understanding,  and  with  bias. 

As  divorce  cases  arise  out  of  domestic  troubles, 
the  witnesses  most  likely  to  testify  are  the  parties, 
their  children,  their  connections,  their  friends  and 
servants;  all  of  w^hose  testimony  is  admissible,  but 
very  likely  to  be  colored  by  prejudice.  A  maid  can 
hardly  be  expected  to  testify  against  her  mistress. 

Especially  in  cases  of  adultery,  the  complain- 
ant depends  very  often  largely  on  the  testimony  of 
detectives,  whose  evidence  is  received  with  great 

383 


WOMAN  UNDER  THE  LAW 

caution ;  of  prostitutes,  who,  it  is  said,  will  sell  their 
word  as  readily  as  their  bodies ;  and  of  accomplices, 
whom  a  false  feeling  of  honor  justifies  in  saying  any- 
thing to  clear  the  accused.  The  testimony  of  such 
persons  is  admissible,  but  of  no  great  weight  with- 
out corroboration. 

Courts  rarely  are  willing  to  grant  a  divorce  on 
the  testimony  of  one  person ;  but  there  is  no  rule  in 
the  United  States,  nor  now  in  England,  like  that  of 
the  ecclesiastical  courts,  which  required  at  least  two 
witnesses  to  every  fact. 

The  proof  of  each  of  the  causes  for  divorce, 
and  of  each  of  the  defences,  has  been  briefly  dis- 
cussed under  each  of  those  heads,  and  there  are  no 
special  rules  relating  to  the  proof  of  the  jurisdic- 
tional facts.  The  only  remaining  subject  of  im- 
portance to  be  discussed  is  therefore  the  proof  of 
marriage  in  divorce  cases. 

Generally,  just  as  a  marriage  may  be  alleged 
it  must  be  proved.  Still,  the  object  of  statutes  and 
rules  requiring  full  proof  in  divorce  cases  is  to 
prevent  collusion  in  making  out  the  grounds  for 
divorce;  and  as  marriage  is  not  a  ground  for  di- 
vorce, the  reason  does  not  apply  to  the  proof  of 
marriage,  and  many  cases  seem  to  hold  that  w^hile 
all  other  matters  must  be  proved  marriage  must  be 
admitted,  though  this  is  also  denied.  If  there  be  a 
default,  or  if  the  marriage  be  denied,  it  must  be 
proved.  If  there  has  been  no  marriage,  there  can 
be  no  divorce,  but  only  a  decree  of  nullity.  An 
agreement  to  marry  will  not  suffice  to  base  a  divorce 
suit  on.  Nor  will  a  marriage  which  has  been  dis- 
solved by  death.  Nor  one  which  has  been  dissolved 
by  a  valid  and  total  divorce.  But  those  divorces 
which  have  no  extra-territorial  effect  over  one  of 
the  parties  do  not  so  far  destroy  the  marriage  as  to 
that  party  as  to  prevent  a  divorce. 

384 


DIVORCE 

Marriage  in  divorce  cases  may  be  proved  by 
direct  evidence  of  the  celebration,  or  the  contract, 
as  the  case  may  be;  and  it  may  also,  except  in  cer- 
tain cases,  be  proved  by  cohabitation  and  repute. 
The  exceptional  cases  are  those  in  which  the  proof 
of  marriage  would  render  acts  (which  would  not 
otherwise  be  so),  criminal,  as  suits  where  adultery 
is  the  ground  alleged.  Another  exceptional  case  is 
that  in  which  a  marriage  celebrated  at  a  certain  time 
and  place  is  alleged,  in  which  case  no  evidence  can 
be  introduced  of  a  marriage  by  contract,  or  a  mar- 
riage celebrated  at  some  other  time  and  place. 

Provision  is  made  by  statute  in  most  states  con- 
ferring upon  the  courts,  before  which  an  application 
for  divorce  is  pending,  authority  to  make  such  de- 
cree as  they  may  deem  beneficial  and  expedient  for 
the  care  and  custody  of  the  minor  children  of  the 
parties;  but  such  power  would  seem  to  arise  upon 
the  institution  of  the  suit  for  divorce  or  separation 
in  a  court  of  chancery,  independently  of  such  stat- 
utes, as  being  embraced  in  that  broad  and  com- 
prehensive jurisdiction  with  which  courts  of  chan- 
cery are  vested  over  the  persons  and  estates  of  in- 
fants, and  which  attaches  w^henever  their  aid  is  in- 
voked with  reference  to  an  infant,  although  such  aid 
is  invoked  only  incidentally  to  some  other  matter 
which  is  the  principal  subject  of  controversy. 

When  once  this  jurisdiction  attaches,  it  is 
ample,  effectual,  and  far-reaching,  so  that  occasion 
can  rarely,  if  ever,  arise  for  the  interposition  of  any 
other  court  in  relation  to  the  custody  of  the  children. 

Pending  the  trial  of  such  suit  affecting  its  cus- 
tody, the  child  is,  in  legal  contemplation,  in  the  cus- 
tody of  the  court,  and  at  all  times  subject  to  its  or- 
der. Courts  of  common  law  will  ordinarily  decline 
to  entertain  jurisdiction  upon  habeas  corpus,  if  it 
appear  that  there  are  proceedings  in  chancery  rela- 

385 


WOMAN  UNDER  THE  LAW 

tive  to  the  custody,  and  it  would  seem  that  the 
chancery  courts  may  even  restrain  such  proceed- 
ings. 

Whenever  the  custody  of  an  infant  is  the  sub- 
ject of  suit,  the  coqrts  of  chancery  have  full  power 
to  make  interim  arrangements  for  such  custody. 
This  power  is  to  be  exercised  primarily  for  the  bene- 
fit of  the  child,  and  such  custody  may  be  committed 
to  either  parent,  or  to  a  third  party,  upon  such  con- 
ditions and  under  such  restrictions  as  the  court,  in 
the  interest  of  justice  and  public  policy,  shall  deem 
fit  to  impose. 

Upon  the  dissolution  of  the  marriage  by  ab- 
solute or  limited  divorce,  the  courts,  looking  mainly 
to  the  welfare  and  interests  of  the  children,  in  the 
aw^ard  of  the  custody  should  place  them  where  such 
interests  will  be  best  promoted  and  their  happiness 
secured.  No  certain  rule  for  the  government  of  the 
courts  in  such' cases  can  be  laid  down,  except  this, 
that  the  best  interests  of  the  children  must  be  con- 
sulted. The  courts  in  such  cases  do  not  act  to  en- 
force the  rights  of  either  parent,  but  to  protect  the 
interests  of  the  children.  While  the  principle  mak- 
ing the  welfare  of  the  children  the  paramount 
consideration  in  the  determination  of  all  questions 
relating  to  their  custody,  no  matter  in  what  form 
arising,  is  one  of  universal  application.  The  pen- 
dency of  a  suit  for  divorce  is  said  to  be  a  circum- 
stance requiring  more  than  ordinarily  free  applica- 
tion of  such  principle. 

If  the  child  has  arrived  at  an  age  of  discretion 
to  choose  for  itself,  the  general  rule  is  that  no 
restraint  w^ill  be  placed  on  its  determination,  and  it 
will  not  be  taken  from  one  parent  and  given  to 
another  against  its  wishes.  The  "age  of  discretion" 
is  ascertained  not  merely  by  the  years  of  the  child 
(there   being,    strictly   speaking,    no   definite    time 

386 


DIVORCE 

between  birth  and  majority  that  can  be  designated 
as  such),  but  by  its  capacity,  information,  intel- 
ligence, and  judgment.  If,  in  any  proceeding 
touching  its  custody,  an  infant  is  able  to  make  a 
proper  choice,  the  court  is,  in  a  large  measure,  re- 
lieved from  responsibility;  and,  with  advanced 
years,  approaching  to  majority,  the  choice  allowed 
to  an  infant  should  increase,  and  to  a  large  extent 
determine  the  custody.  If  the  child  has  not  arrived 
at  an  age  of  discretion,  the  courts,  in  their  award  of 
the  custody,  look  primarily  to  the  fitness  of  the 
parties,  and  their  adaptability  to  the  task  of  caring 
for  the  children,  taking  into  consideration  the  age, 
sex,  state  of  health,  and  other  circumstances  in  the 
lives  of  the  children,  and  excluding  no  sources  of  in- 
formation or  methods  of  investigation,  that  are 
likely  to  aid  in  making  a  proper  selection. 

Custody  is  ordinarily  awarded  to  the  innocent 
and  successful  party  to  a  divorce  suit;  but  there  is 
no  absolute  rule  upon  the  subject.  The  guilt  or  in- 
nocence of  the  respective  parties,  according  to  the 
reason  and  weight  of  the  authorities,  is  material  to 
the  question  of  custody  only  so  far  as  it  relates  to 
the  fitness  of  the  parties,  for  the  task  of  caring  for 
the  children.  It  was  held  in  New  York,  upon  a 
proceeding  by  habeas  corpus,  that  evidence  of 
cruel  treatment  by  the  husband  of  the  wife  is  rel- 
evant to  the  question  of  fitness  for  the  custody  of 
the  child,  since  a  father  who  is  cruel  to  his  wife  is 
likely  to  be  so  towards  his  children.  The  leading 
principle  here  as  upon  other  points  is  to  consult  the 
good  of  the  children  rather  than  the  gratification  of 
the  feelings  and  wishes  of  the  parents.  Therefore 
the  fact  of  either  party's  guilt  is  not  sufficient  to 
prevent  an  award  of  the  custody  to  such  party,  if 
the  interests  of  the  children  would  be  thereby  sub- 
served, and  their  welfare  promoted. 

387 


WOMAN  UNDER  THE  LAW 

The  entire  matter  of  the  award  is  one  largely 
of  judicial  discretion,  and  in  the  exercise  of  discre- 
tion, the  courts  often  award  some  children  to  one 
parent  and  some  to  the  other,  having  regard  to  age, 
sex,  state  of  health,  and  other  circumstances.  Thus 
children  of  a  nearly  equal  age,  will  as  a  rule  be  kept 
together,  and  the  general  inclination  and  tendency 
of  the  courts  are  in  the  direction  of  giving  the 
j'ounger  children  and  female  children  of  all  ages  to 
the  mother;  if  the  interest  of  the  infant  demands 
such  a  course,  the  custody  may  be  awarded  to  a  third 
party.  Questions  in  regard  to  the  religious  educa- 
tion of  the  children  are  sometimes  considered  in 
the  award  of  the  custody,  upon  the  separation  of  the 
parents  by  the  English  courts;  but  the  American 
courts  universally  repudiate  the  notion  that  the 
question  of  religious  belief  can  enter  into  the  the 
determination  of  the  custody.  Yet  upon  grounds 
connected  with  the  temporal  interests  of  the  chil- 
dren, the  courts  may  confide  the  custody  to  a  partic- 
ular person,  w^ith  a  view^  of  having  them  brought 
up  in  a  certain  religious  belief. 

The  question  of  custody  is  not  necessarily  de- 
pendent upon  the  action  of  the  court  in  regard  to  the 
divorce  or  separation  of  the  parents.  The  courts 
may  dispose  of  the  custody  upon  a  bill  for  alimony 
only,  or  upon  a  bill  for  divorce,  even  though  the 
divorce  be  denied.  But  when  a  divorce  has  merely 
been  applied  for,  and  the  court's  action  in  relation 
to  the  children  has  not  been  invoked,  the  custody 
may  afterwards  be  adjudicated  in  a  separate  pro- 
ceeding by  habeas  corpus,  but  when  the  court  has 
acted  upon  the  question  of  custody  in  a  divorce  suit, 
its  decree  is  res  adjudicata,  and  cannot  be  collateral- 
ly inipeached,  or  inquired  into.  The  important  dis- 
tinction, must,  however,  be  noted,  that  while  such 
decree  binds  the  parties  inter  sese,    the    children 

388 


DIVORCE 

themselves  are  not  bound  or  concluded  by  the  de- 
cree ;  so  that  if  a  question  in  relation  to  the  custody 
subsequently  arises  upon  habeas  corpus,  the  award 
in  the  divorce  proceedings  cannot  overbear  the  re- 
quirements of  the  good  of  the  children,  which  may 
necessitate  the  determination  without  reference  to 
the  mere  claim  of  the  custody  arising  out  of  the 
decree.  The  extra-territorial  effect  of  the  decree  as 
to  the  custody  of  the  children  has  been  upheld  on 
the  one  hand  and  denied  on  the  other  and  qualified 
in  still  another  instance. 

A  decree  in  relation  to  the  custody  of  the  in- 
fant children  of  the  parties  in  a  divorce  suit  has 
been  held  to  have  the  effect  of  constituting  such  in- 
fants wards  of  the  court ;  and  the  courts  may  require 
the  infants  to  be  kept  within  the  jurisdiction.  The 
courts  generally  make  provisions  in  the  decree  for 
access  by  the  party  not  having  the  custody  to  such 
infants  at  reasonable  times  and  places,  but  may 
restrain  such  party  by  injunction  from  interfering 
w^ith  such  custody.  The  decree  in  such  cases  ter- 
minates the  mere  legal  rights  of  the  parent  deprived 
of  the  custody,  but  not  necessarily  the  liabilities. 

The  power  to  amend  or  modify  the  decree  in 
relation  to  the  custody  of  the  children  is  provided 
for  by  statute  in  a  number  of  the  states.  As  to  the 
power  of  the  courts  independently  of  such  provis- 
ions, a  conflict  of  ruling  obtains.  On  the  one  hand 
it  is  affirmed  that  the  infant  children  of  the  divorced 
parties  are,  in  some  sense,  the  w^ards  of  the  court, 
and  that  the  decree  in  relation  to  the  custody  may 
from  time  to  time  be  modified  as  the  circumstances 
may  require  under  the  general  chancery  pow^ers. 
On  the  other  hand  the  power  is  denied,  and  strictly 
construed  even  when  given  by  statute. 

A  divorce  suit  may  be  terminated  by  a  decree 
dismissing  the  bill  of  complaint  which,  unless  made 

389 


WOMAN  UNDER  THE  LAW 

"without  prejudice,"  bars  another  action  for  the 
same  cause.  The  bill  may  be  dismissed  on  applica- 
tion of  the  defendant  if  the  complainant  does  not 
appear  when  the  case  is  ready  or  abandons  the  suit, 
or  if  the  parties  pendente  lite  resume  cohabitation, 
or  if  both  parties  desire  it,  or  if  a  defence  has  been 
established,  or  if  there  has  been  a  verdict  for  the 
defendant  and  the  time  for  asking  for  a  new^  trial 
has  elapsed.  But  the  complainant  cannot  have  his 
bill  dismissed  if  a  cross-bill  has  been  filed.  The  de- 
cree may  dismiss  the  complaint  "w^ithout  prejudice" 
when  the  merits  of  the  controversy  have  not  been 
determined;  but  not  otherwise.  Unless  the  bill  is 
dismissed  "without  prejudice"  no  action  can  after- 
wards be  brought  on  the  same  charges.  A  divorce 
suit  may  also  be  terminated  by  a  decree  of  divorce 
a  vinculo  matrimonii;  or  by  a  decree  a  mensa  et 
thoro;  or  by  a  decree  of  nullity  of  marriage;  or  the 
decree  may  entitle  the  party  to  relief  unless  within 
a  given  time  a  release  to  the  contrary  appears 
(decree  nisi).  And  the  decree  may  grant  the  other 
relief  with  the  divorce  or  grant  a  divorce  without 
giving  the  guilty  party  the  right  to  marry  again. 

In  some  states  the  court  does  not,  after  hear- 
ing, immediately  divorce  the  parties,  but  passes  a 
decree  nisi,  which  can  be  made  absolute  only  after 
the  expiration  of  a  certain  time,  and  provided  no 
cause  to  the  contrary  is  meanwhile  shown.  If  any 
cause  is  shown,  the  decree  nisi  may  be  reversed;  if 
not,  it  may  be  made  absolute.  Until  the  decree  is 
made  absolute  the  marriage  is  in  full  force,  and  the 
wife  is  still  a  married  woman  under  all  the  disa- 
bilities of  coverture. 

As  already  stated,  nullity  suits  or  suits  to  have 
a  marriage  declared  void,  are  not  discussed  in  this 
chapter.     Such  decrees  do  not  properly  dissolve  the 

390 


DIVORCE 

marriage,  but  declare  that  no  valid  marriage  ever 
existed. 

When  the  court  grants  a  divorce,  dissolving 
absolutely  the  mutual  rights  and  obligation  of  the 
husband  and  wdfe,  the  decree  is  known  as  a  decree 
of  divorce,  from  the  marriage  bond,  or  a  vinculo 
matrimonii. 

Such  a  decree  absolutely  dissolves  all  mar- 
riage ties,  and  destroys  the  relation  of  husband  and 
wife.  After  the  date  of  the  decree,  the  husband 
has  no  wife,  and  the  w^ife  has  no  husband,  and  the 
woman  is  a  feme  sole.  Even  if  one  of  the  parties 
is  prohibited  from  marrying  again,  a  marriage  in 
defiance  of  such  prohibition  is  not  bigamy ;  not  even 
in  such  case  is  sexual  intercourse  with  another  per- 
son adultery  or  any  matrimonial  offence.  So  after 
such  a  divorce,  therefore,  the  man  and  woman  are 
as  strangers  to  each  other;  they  may  contract  with 
each  other  and  sue  each  other;  and  the  one  surviv- 
ing does  not  represent  the  other  as  widower  or 
widow,  heir  or  personal  representative.  In  the  case 
of  an  absolute  divorce,  the  woman  after  the  man's 
death  is  not  his  widow,  heir  or  personal  repre- 
sentative. With  such  divorce,  curtesy,  and  dower, 
and  all  marriage  estates  during  coverture  cease, 
as  does  a  provision  made  for  a  w^oman  "during 
coverture."  Such  a  divorce  dissolves  a  marriage 
as  absolutely  as  death  does.  If  the  parties  have 
different  domiciles  at  the  time  of  the  decree  beyond 
the  state  granting  the  divorce  one  may  be  divorced, 
while  the  other  is  not. 

When  the  court  grants  a  divorce  which  does 
not  absolutely  destroy  the  relation  of  husband  and 
wife  between  the  parties,  but  provides  for  their 
living  apart,  the  decree  is  known  as  a  legal  separa- 
tion, or  a  divorce  from  bed  and  board  or  a  mensa  et 
thoro.     Such  a  divorce  does  not  put  an  end  to  the 

391 


WOMAN  UNDER  THE  LAW 

marriage  ties,  or  destroy  the  relation  of  husband  and 
wife,  but  simply  suspends  certain  of  the  mutual 
rights  and  obligations  of  the  parties,  indefinitely  or 
for  a  limited  time,  or  till  they  become  reconciled 
and  live  together  again.  Such  a  divorce  does  not 
enable  the  parties  to  marry  again,  nor  does  it  affect 
their  marriage  property  rights  or  estates  dependent 
upon  coverture;  but  it  may  put  an  end  to  their 
common  interests,  give  the  wife  a  standing  as  a 
feme  sole,  and  otherw^ise  change  their  legal  condi- 
tion.    The  survivor  is  a  widow^  or  widower. 

When  the  court  is  so  authorized  by  statute,  it 
may,  in  granting  an  absolute  divorce,  prohibit  the 
guilty  party  from  marrying  again  during  the  other 
party's  life  time,  or  until  some  further  decree;  but 
a  decree  of  this  kind  entered  against  the  party  who 
had  not  appeared  or  been  summoned  w^ould  have 
no  effect,  so  it  would  be  improper  to  enter  such  a 
decree,  with  a  divorce  a  mensa  et  thoro;  or  when 
the  prohibition  is  directly  created  by  statute. 
Whether  the  prohibition  is  contained  in  the  decree 
or  in  a  statute,  the  efiFect  is  the  same.  Whether  such 
prohibition  has  any  effect  outside  of  the  state  where 
the  divorce  has  been  granted  is  much  disputed.  In 
most  states  such  prohibition  is  regarded  as  a  penalty, 
and  is  therefore  deemed  to  have  no  extra-territorial 
effect.  But  in  Maryland  and  North  Carolina  it  is 
held  not  to  be  a  penaltj'^  but  a  denial  of  relief,  and  a 
continuance  of  the  incapacity  to  marry  which  ex- 
isted before  the  divorce.  In  these  two  states,  there- 
fore, as  capacity  to  marry  depends  upon  domicile, 
the  prohibition  w^ould  be  held  to  have  equal  effect, 
wherever  the  party  tried  to  marry,  as  long  as  such 
party  retained  his  or  her  domicile;  but  in  the  other 
states  the  prohibition  can  be  easily  evaded.  A  New 
Yorker  prohibited  by  a  New^  York  court,  has  but  to 
step  into  New  Jersey  to  be  married,  and  the  New 

392 


DIVORCE 

York  courts  will  recognize  the  marriage.  When 
such  prohibition  is  recognized,  a  marriage  in  dis- 
regard thereof  would  be  invalid,  though  it  would 
pot  constitute  bigamy  or  adultery. 

As  already  shown,  the  decree  may  dispose  of 
the  custody  of  the  children  of  the  parties  and  also 
of  their  property;  and  it  may  likewise  give  relief 
connected  with  such  property.  So  in  many  states 
the  courts  have  the  power  to  restore  to  the  wife  her 
original  name,  though  this  is  unnecessary,  as  a 
woman  after  divorce  may  assume  any  name  that 
pleases  her.  Except  in  trademark  cases,  there  is  no 
property  in  a  name;  and  a  person  may  with  honest 
intent  assume  any  name  that  he  or  she  pleases 
without  the  aid  of  legislature  or  court.  A  wife  need 
not  assume  her  husband's  name  if  she  does  not  w^ish 
to  and  many  actresses  and  literary  women  do  not; 
and  a  woman  may  assume  the  name  of  a  man  that 
is  not  her  husband.  Since  a  name  is  thus  merely  a 
matter  of  reputation  or  choice,  no  decree  is  neces- 
sary to  establish  or  change  it.  But  in  some  states, 
in  order  that  sanction  and  publicity  may  be  given  to 
a  party's  assumed  name,  the  pow^er  to  change  the 
name  is  vested  in  some  court,  and  the  power  to 
change  the  names  of  the  parties  or  to  restore  to  the 
wife  her  ante-nuptial  or  maiden  name  is  often  given 
to  divorce  courts.  Still,  it  has  been  said  that  a 
woman  is  remitted  to  her  former  name  and  station 
by  an  absolute  divorce;  that  the  name  that  she 
acquired  by  her  marriage  becomes  "her  real  name," 
and  that  she  can  acquire  a  new  name  after  divorce 
only  by  reputation,  and  that  there  cannot  be  two 
women  entitled  to  the  name  of  the  same  husband. 

After  the  final  decree  of  divorce  has  been  en- 
tered and  the  right  of  appeal  has  been  lost  or  ex- 
hausted its  determination,  if  it  is  valid,  is  conclusive 
upon  the  parties,  and  to  a  certain  extent  upon  third 

393 


WOMAN  UNDER  THE  LAW 

parties,  but  though  a  formal  decree  is  prima  facie 
valid,  it  may  be  shown  to  be  void  and  of  no  effect, 
or  to  be  voidable  and  be  set  aside. 

The  first  distinction  must  therefore  be  made 
between  such  decrees  as  are  void,  and  such  as  are 
merely  voidable,  A  void  decree  is  one  that  is  of  no 
effect,  and  the  invalidity  of  which  may  be  made  to 
appear  in  any  proceeding  between  parties;  while  a 
voidable  decree  is  one  the  validity  of  which  cannot 
be  questioned  collaterally,  but  only  in  a  special  pro- 
ceeding before  the  proper  court  instituted  by  the 
proper  party  for  the  purpose  of  having  it  avoided. 

Want  of  jurisdiction  in  the  court  passing  it  is 
the  only  cause  which  renders  a  decree  of  divorce 
absolutely  void;  fraud  does  not,  nor  does  irregular- 
ity. As  has  been  shown  in  discussing  jurisdiction, 
a  court  may  have  no  jurisdiction  at  all  to  enter  a 
decree,  or  it  may  have  jurisdiction  only  as  to  one 
of  the  parties;  or  it  may  have  jurisdiction  over  the 
status  of  one  of  the  parties,  and  not  over  the  person 
of  such  party ;  and  a  decree  may  therefore  be  wholly 
or  only  partially  void.  And  the  record  is  only  prima 
facie  evidence  of  the  jurisdictional  facts  that  it 
states.  Any  person  may  therefore  show  in  any 
kind  of  proceeding  at  law^  or  in  equity  that  a  divorce, 
the  existence  of  w^hich  is  pertinent  to  the  inquiry, 
wras  granted  by  the  court  which  had  not  the  proper 
jurisdiction,  and  is  therefore  of  no  effect  whatever. 
Though  such  a  decree  need  not  be  declared  void,  on 
proper  application,  the  court  granting  it  would  set 
it  aside  as  in  the  case  of  a  voidable  decree,  and  the 
court  of  equity  would  probably  declare  it  void  under 
its  general  jurisdiction.  As  above  stated,  fraud  does 
not  render  a  decree  void,  but  only  voidable ;  still,  as 
the  proceedings  to  have  a  decree  set  aside  for  fraud 
are  not  open  to  third  persons,  it  has  been  said  that 
third  parties  may  collaterally  question  a  fraudulent 

394 


DIVORCE 

decree,  which  thus  becomes,  as  far  as  they  are  con- 
cerned, a  void  decree.  If  a  party  has  joined  in  ob- 
taining a  void  divorce  he  cannot  set  up  its  validity 
against  the  other  party  if  such  other  party  has  mar- 
ried again,  relying  on  the  divorce. 

Generally,  a  voidable  decree  can  be  avoided 
only  by  the  court  which  entered  it,  though  some 
cases  hold  that  courts  of  equity  may  declare  a  di- 
vorce void  on  the  ground  of  fraud.  The  power  to 
vacate  its  judgments  is  the  common-law  power  of 
all  courts,  and  extends  fully  to  judgments  of  di- 
vorce. And  in  some  states  the  divorce  courts  have 
fuller  and  special  powers  given  them. 

The  injured  party  can  apply  to  have  the  decree 
avoided,  but  a  third  party  cannot.  The  husband 
and  wife  can  probably  apply  jointly;  and  this  was 
done  in  a  New  York  case  in  which  the  complainant 
after  divorce  became  convinced  of  the  innocence  of 
his  wife.  But  the  party  who  has  committed  the 
fraud  cannot  apply,  nor  can  one  who  has  acquiesced 
in  the  decree.  But  the  death  or  marriage  of  one 
party  does  not  bar  the  application  of  the  other. 

Within  the  term  during  which  the  divorce  is 
granted  the  court  may  vacate  its  decree  for  any 
cause  within  its  discretion.  But  after  the  term  the 
decree  may  be  vacated  only  for  irregularity,  want 
of  jurisdiction,  or  fraud.  A  mistake  will  not  war- 
rant the  vacating  of  a  decree,  but  may  be  corrected. 

In  vacating  the  decree  the  court  follows  its  own 
practice,  or,  which  is  usually  the  same  thing,  the 
practice  of  the  chancery  courts.  The  application  is 
duly  made  by  petition  or  motion;  the  other  party 
is  notified,  if  possible,  and  proof  in  the  shape  of 
affidavits  or  in  other  form  is  considered.  Before 
granting  the  petition  the  court  will  use  great  cir- 
cumspection, and  will  not  act,  probably,  if  the 
divorce  does  not  affect  property  or  children. 

395 


WOMAN  UNDER  THE  LAW 

When  a  decree  of  divorce  is  avoided  it  is  ren- 
dered void  ab  initio;  the  marriage  relation  of  the 
parties  exists  as  if  never  interrupted.  A  second  mar- 
riage by  either  of  the  parties  is  void,  and  gives  no 
marriage  rights,  and  no  legitimacy  to  the  children 
resulting  from  it. 

If  the  final  decree  is  against  the  complcdnant, 
and  the  bill  is  dismissed,  it  is  conclusive,  against 
such  complainant,  who  cannot  afterwards  rely  on 
the  facts  alleged.  A  decree  dismissing  the  com- 
plaint is  conclusive  as  to  the  charges  therein  set 
forth;  and  the  same  party  cannot  afterwards,  even 
in  applying  for  a  different  kind  of  divorce,  allege 
the  same  adultery,  cruelty,  or  desertion.  But,  of 
course,  facts  occurring  after  the  filing  of  the  first  bill 
may  be  alleged  in  a  subsequent  case.  But  a  dismis- 
sal of  the  bill  "without  prejudice"  is  not  conclusive 
against  the  complainant;  nor  is  a  dismissal  before 
final  hearing  or  in  a  plea  in  abatement  or  a  non-suit. 
If  a  divorce  is  granted  and  a  decree  is  valid,  it  is  con- 
clusive upon  the  parties,  of  all  facts  found,  and  of 
all  facts  which  might  have  been  proved  in  support 
of  the  charges  or  the  defences.  Thus,  it  settles  the 
fact  that  the  parties  were  duly  married.  In  case  of 
an  absolute  divorce,  the  dissolution  of  marriage  is 
settled  and  neither  of  the  parties  can  maintain  an- 
other suit  for  divorce.  But  statutes  in  some  states 
allow  one  party  to  obtain  a  divorce,  if  the  other  has 
obtained  a  divorce  in  a  different  state,  and  so  where 
the  divorce  is  partially  invalid,  there  may  be  enough 
left  upon  which  to  base  another  suit.  Where  a 
limited  divorce  was  granted  for  cruelty,  it  w^as  held 
conclusive  as  to  cruelty  in  a  subsequent  application 
for  an  absolute  divorce,  for  cruelty  and  adultery. 

A  decree  divorcing  the  parties  wholly  or  par- 
tially is  conclusive  on  everyone  as  to  their  status. 
But  such  a  decree  is  not  conclusive  upon  third  per- 

396 


DIVORCE 

sons  not  parties  to  the  suit,  as  to  the  marriage  of  the 
parties,  or  as  to  their  respective  innocence  or  guilt. 
Thus,  when  a  third  person  sued  a  husband  for  neces- 
saries supplied  his  wife,  a  decree  of  divorce  deter- 
mining that  the  wife  was  apart  from  her  husband  by 
her  own  fault,  or  that  she  was  or  v/as  not  guilty  of 
adultery  was  held  not  conclusive. 


397 


CHAPTER  XIIL 
ALIMONY 

In  divorce  law  alimony  is  the  allowance  which 
the  husband  pays  by  order  of  the  court  to  his  wife, 
while  living  separate,  for  her  maintenance;  or  it 
may  be  a  like  provision  ordered  for  the  sustenance 
of  a  woman  divorced  from  the  bonds  of  matrimony 
out  of  her  late  husband's  estate,  the  latter  branch 
of  the  definition  denoting  a  form  of  alimony  known 
only  to  the  modern  law.  It  may  be  for  the  w^ife's 
use  during  the  pendency  of  the  suit,  called  alimony 
pendente  lite,  or  after  its  termination  known  as  per- 
manent alimony. 

Where  alimony  is  granted  as  an  incident  of 
divorce,  the  court  which  has  jurisdiction  to  decree 
the  divorce,  has  also  the  power  to  grant  alimony, 
provided  it  obtains  jurisdiction  of  both  parties;  but 
if  the  divorce  was  ex  parte  and  the  defendant  is 
domiciled  in  another  state  and  does  not  appear,  no 
alimony  can  be  granted,  unless  he  has  been  duly 
served  w^ith  process  within  the  jurisdiction  of  the 
court  or  appears  and  defends. 

When  the  wife  has  obtained  a  divorce  in  one 
state  with  which  no  alimony  was  granted,  she  has, 
in  some  cases,  been  permitted  to  obtain  in  the  court 
in  the  domicile  of  her  husband,  a  decree  for  alimony. 
If  after  alimony  is  decreed  the  husband  moves  to 
another  jurisdiction  the  decree  can  be  enforced  in 
the  courts  of  the  latter  or  by  the  United  States 
courts. 

Without  domicile  there  is  usually  no  jurisdic- 

398 


ALIMONY 

tion  to  decree  divorce,  much  less  alimony;  the  lat- 
ter being  an  action  in  personam. 

The  legislature  in  granting  a  divorce  cannot 
give  alimony,  but  the  jurisdiction  to  do  so  has  been 
given  by  statute,  or  assumed  by  the  courts  in  some 
states. 

Alimony,  under  the  English  law,  has  no  in- 
dependent existence,  and  could  only  be  granted  as 
an  incident  to  some  other  legal  proceeding,  and  ho 
court,  not  even  the  ecclesiastical,  could  grant  it  if  it 
was  the  only  relief  sought.  This  doctrine  was 
adopted  and  followed  in  many  states  of  this  coun- 
try. But  in  some  of  these,  statutes  now^  provide  for 
the  wife's  maintenance  by  the  husband,  where 
without  her  fault  she  is  separated  from  him.  This  is 
in  the  nature  of  alimony,  but  is  usually  termed 
maintenance.  Before  the  statutes  were  passed  in 
some  states,  and  in  others  w^here  there  is  no  statu- 
tory provision,  the  courts  held  that  it  is  one  of  the 
ordinary  equitable  powers  of  a  chancellor  to  grant 
alimony  without  a  divorce,  entertaining  it  as  an 
original  bill. 

In  those  states  in  which  jurisdiction  is  given  to 
the  courts  to  decree  this  maintenance,  the  statute 
which  grants  the  power  usually  defines  the  circum- 
stances under  which  the  court  may  grant  it.  But 
in  those  states  in  which  the  courts  assume  the  juris- 
diction, the  circumstances  which  may  exist  which 
entitle  the  wife  are  not  so  clearly  defined.  Deser- 
tion, leaving  the  wife  without  means,  is  a  sufficient 
cause,  but  mere  abandonment  has  been  held  in- 
sufficient. Cruelty  is  another  cause,  but  generally 
it  must  be  sufficient  to  entitle  the  wife  to  a  decree 
a  mensa  et  thoro.  The  wife  must  show  rectitude  of 
conduct  on  her  part,  if  complaining  of  the  ill  con- 
duct of  her  husband.  She  need  not,  however,  be  en- 
tirely blameless. 

399 


WOMAN  UNDER  THE  LAW 

The  court  can  only  decree  maintenance  •when 
the  same  causes  exist  as  were  required  by  the  ec- 
clesiastical courts  to  grant  a  divorce  a  mensa  et 
thoro,  or  a  restitution  of  conjugal  rights.  It  has 
been  decreed,  however,  on  slighter  grounds.  As 
in  the  case  of  alimony,  the  court  will  not  decree 
maintenance  for  a  wife  who  has  sufficient  separate 
property  for  her  needs.  In  general,  the  practice  and 
procedure  is  analogous  to  that  in  suits  for  alimony 
with  divorce.  They  must  be  living  apart.  The 
court  must  decree  a  periodical  allowance,  and  not 
specific  property,  unless  authorized  by  statute.  And 
it  has  been  affirmed  in  New  Jersey  and  Mississippi 
and  denied  in  Illinois  that  alimony  pendente  lite 
can  be  allowed  during  the  suit.  Alimony  in  divorce 
suits  is  now  regulated  in  England,  and  in  most  of 
the  United  States  by  statute. 

Alimony  pendente  lite  is  that  alimony  decreed 
to  the  wife  during  the  pendency  of  the  suit.  This 
is  also  regulated  by  statute  in  most  of  the  states, 
usually  declaratory  of  the  common  law.  The  mere 
pendency  of  the  suit  where  the  wife  has  no  separate 
means  adequate  to  her  support,  and  the  husband 
has  the  means,  entitles  her,  v^hether  plaintiff  or 
defendant,  to  alimony  as  long  as  the  litigation  con- 
tinues. Alimony  pendente  lite  to  the  husband  un- 
der special  circumstances  as  well  as  to  the  wife  is 
allowed  in  Iowa,  Wisconsin  and  Georgia. 

As  regards  the  marriage  which  must  exist  to 
entitle  the  w^ife  to  a  decree  of  temporary  alimony, 
as  the  merits  are  not  gone  into,  the  court  will  be 
justified  in  granting  the  decree  if  the  parties  had 
lived  together  and  adjusted  their  property  rights 
on  the  basis  of  the  validity  of  the  marriage.  So 
alimony  pendente  lite  has  been  allowed  in  nullity 
suits,  and  also  where  the  w^ife  alleges  and  the  hus- 
band denies  their  marriage,  though  not  where  the 

400 


I 


ALIMONY 

wife  is  complainant  and  asserts  or  is  defendant  and 
admits  the  invalidity  of  the  marriage. 

A  suit  must  be  pending  either  for  a  divorce  or 
for  separation.  If  the  wife  is  complainant  the  hus- 
band must  have  been  properly  brought  into  court, 
until  which  time  the  court  has  no  jurisdiction,  as 
no  suit  is  pending. 

After  the  husband  is  summoned  and  until  the 
suit  has  been  dismissed,  or  a  final  decree  has  been 
entered,  the  wife  may  at  any  time  apply  for  and  the 
court  decree  temporary  alimony.  After  final  decree 
it  is  too  late,  so  if  the  suit  has  been  dismissed. 

During  the  pendency  of  the  suit  the  wife  must 
be  living  separate  from  her  husband.  If  they  are 
living  together  the  allowance  would  be  improper. 

If  the  wife  has  means  sufficient  to  maintain  her 
in  the  rank  of  life  to  which  she  is  accustomed,  no 
temporary  alimony  will  be  granted  her.  If  the  hus- 
band is  destitute  and  the  wife  is  complainant  neither 
suit-money  nor  temporary  alimony  will  be  decreed; 
on  the  other  hand  if  the  husband  is  complainant  and 
destitute,  the  court  may  suspend  the  suit  until  some 
provision  is  made  for  the  wife,  and  if  he  cannot  give 
her  the  means  to  defend  herself,  he  cannot  have  a 
divorce. 

The  wife's  application  for  alimony  pendente 
lite  must  show  merits,  and  should  be  supported  by 
her  own  affidavit  or  that  of  others.  It  ought  to 
allege  separation,  pendency  of  a  suit,  her  need,  and 
her  husband's  faculties  and  abilities.  The  husband 
if  defendant  may  present  affidavits  as  to  his  wife's 
means  and  his  faculties,  but  not,  it  seems,  if  com- 
plainant. 

The  alimony  pendente  lite  usually  is  made  up 
of  a  sum  to  support  the  wife;  to  pay  her  counsel 
fees  and  the  expenses  of  the  suit.  And  this  the 
court  will  award  upon  having  the  necessary  facts 

401 


WOMAN  UNDER  THE  LAW 

presented  to  it  almost  as  a  matter  of  course,  despite 
a  plea  to  the  merits  or  even  to  the  jurisdiction. 

The  court,  however,  will  not  grant  alimony 
pendente  lite  if  it  appears  that  there  was  no  mar- 
riage, or  if  the  wife  admits  guilt  or  is  greatly  at 
fault,  or  does  not  make  out  a  cause  in  her  bill  or  is 
acting  in  bad  faith,  or  if  her  husband  is  insane,  and 
of  course,  if  he  does  not  appear. 

It  may  be  granted  by  the  lower  court  or  by  the 
appellate  court  pending  an  appeal  and  even  after 
verdict  against  the  wife,  if  the  cause  has  not  yet  had 
a  final  hearing.  The  award  is  a  matter  within  the 
sound  judicial  discretion  of  the  court.  In  some 
states  the  decree  by  the  lower  court,  of  alimony 
pendente  lite  is  final,  at  least  as  to  the  amount.  In 
others  it  is  subject  to  appeal,  where  it  may  be  an- 
nulled or  altered.  So  the  court  which  granted  it 
may  cimend  or  revoke  it. 

The  amount  of  alimony  pendente  lite  is  deter- 
mined by  no  fixed  rule,  being  in  the  discretion  of 
the  court  in  view  of  the  circumstances  of  each  case. 
The  amount  of  alimony  pendente  lite  is  less  than 
that  of  permanent  alimony,  and  like  permanent 
alimony  is  determined  by  considering  the  joint 
means,  the  husband's  faculties,  facilities  and  abil- 
ities, and  the  wife's  property;  whence  the  fortune 
or  property  came,  whether  from  the  wife  or  the 
husband,  the  ages  of  the  parties,  and  the  expenses 
to  which  they  are  subjected,  and  the  custody  and 
support  of  the  minor  children. 

Taking  all  these  circumstances  into  account, 
the  court  will  award  the  wife  her  just  proportion; 
as  for  instance,  one  fourth,  one  fifth,  one  eighth, 
one  half,  which  may  in  the  discretion  of  the  court 
be  increased  or  diminished  as  the  cause  progresses, 
or  may  even  be  revoked. 

As  a  part  of  this  alimony,  or  besides  this  al- 

402 


ALIMONY 

lowance,  the  court  will  also  allow  her  suit-money 
and  counsel-fees. 

As  shown  before,  alimony  pendente  lite  may 
begin  as  soon  as  the  husband  is  "in  court";  and  if 
the  court  does  not  annul  the  decree,  it  continues  as 
long  as  the  suit  is  pending,  but  ceases  when  the  suit 
is  dismissed,  or  the  parties  are  reconciled,  or  one  of 
them  dies,  or  a  final  decree  is  entered. 

Permanent  alimony  is  that  alimony  which  is 
granted  after  the  termination  of  the  suit. 

The  power  to  grant  permanent  alimony  and 
the  circumstances  under  which  it  may  be  decreed 
are  regulated  largely  by  statute.  Generally  it  is  al- 
lowed in  any  case  of  divorce  absolute  or  limited, 
provided  the  marriage  was  a  valid  one. 

But  by  statutes  in  many  states  it  is  allow^ed 
only  when  the  divorce  is  for  adultery  or  other  fault 
of  the  husband,  and  by  others  when  not  for  adultery 
or  misconduct  of  the  wife.  In  other  states  a  certain 
part  of  the  wife's  estate,  in  the  nature  of  alimony 
is  given  to  the  husband,  and  in  some  states  no  dis- 
tinction is  apparently  made  between  the  laws  gov- 
erning alimony  to  the  wife  and  alimony  to  the  hus- 
band. 

The  court  may  grant  alimony,  though  not 
specifically  prayed  for  if  the  proper  facts  are  before 
the  court.  It  usually,  how^ever,  should  be  specific- 
ally prayed  for  either  in  the  original  bill,  or  by  a 
petition  or  affidavit  setting  forth  the  husband's 
faculties  and  means. 

It  may  be  prayed  for  at  any  time  before  final 
decree  or  after  final  decree  if  the  divorce  is  a  mensa 
et  thoro;  though  not,  it  seems,  if  a  vinculo.  The  de- 
fendant should  be  allowed  to  answer  unless  he  is  in 
default.  It  is  usually  granted  in  the  same  judgment 
with  the  divorce,  but  may  be  in  a  separate  one. 

It  may  be  ordered  to  begin  from  the  date  of 

403 


WOMAN  UNDER  THE  LAW 

final  decree,  or  from  the  beginning  of  the  suit. 

In  the  absence  of  statute,  the  award  is  usually 
a  sum  to  be  paid  periodically,  and  not  either  specific 
property,  or  a  sum  in  gross.  But  by  statutes  in 
some  states,  the  court  may  award  a  specific  part  of 
the  husband's  lands,  and  in  others  in  the  discretion 
of  the  court  either  an  allowance  or  a  sum  in  gross. 

In  some  states  this  is  regulated  by  statute,  but 
usually  like  alimony  pendente  lite  it  is  left  to  the 
discretion  of  the  court,  w^ho  considers  the  circum- 
stances of  each  case,  taking  into  account  the  hus- 
band's faculties,  the  wife's  means,  the  expenses  to 
be  borne  by  each,  the  support  of  the  children,  and 
the  source  from  which  the  money  came,  whether 
from  the  husband  or  the  wife ;  likewise  the  ages  and 
abilities  of  the  parties  and  their  conduct,  giving 
more  to  the  w^ife  if  the  husband  w^as  the  offender 
than  if  she  had  contributed  to  the  fault,  and  a  bare 
maintenance  if  anything,  if  she  w^ere  w^holly  wrong. 

The  court  will  also  take  into  account  what 
amount  the  husband  can  readily  pay  without  ren- 
dering him  destitute  or  impairing  his  business.  If 
the  parties  have  made  a  fair  bona  fide  agreement, 
without  any  fraud,  the  court  will  adopt  it  as  its 
decree. 

And  after  due  consideration  of  the  circum- 
stances of  the  case  the  following  amounts  have  been 
awarded:  one-third,  one-half,  from  one-half  to 
one-third,  one-quarter,  from  one-third  to  one- 
quarter,  two-fifths,  not  to  exceed  one-third  his  in- 
come as  the  maximum. 

A  motion  or  petition  may  be  presented  setting 
forth  facts  to  lead  the  courts  to  increase  or  diminish 
the  amount  of  alimony  decreed.  This  they  usually 
have  the  power  to  do  in  cases  where  the  alimony 
was  decreed  in  a  divorce  a  mensa  et  thoro,  or  in 
cases  of  alimony  without  divorce.   But  not,  it  seems, 

404 


ALIMONY 

in  cases  where  the  court  has  no  longer  jurisdiction 
of  the  parties,  as  in  a  divorce  a  vinculo,  or  where  the 
decree  was  a  final  settlement  of  the  property-rights 
between  the  parties,  unless  the  court  has  reserved 
this  right  in  its  decree,  or  it  is  given  by  statute,  as  it 
is  in  many  states.  The  power  is  only  exercised  in  a 
case  that  clearly  calls  for  interposition,  generally 
some  marked  change  in  the  circumstances  of  the 
parties. 

And  from  the  decision  of  the  lower  courts, 
there  is  usually  an  appeal. 

In  the  jurisdiction  in  which  the  decree  was 
granted  the  court  which  granted  it  is  the  proper 
court  to  enforce  it,  and  although  it  has  been  said 
that  it  is  not  a  debt,  yet  it  has  been  enforced  as  a 
judgment,  and  if  parties  reside  in  different  states, 
by  the  United  States  courts;  and  has  also  been  en- 
forced in  the  different  ways,  according  to  the  prac- 
tice of  the  various  courts,  as  an  ordinary  decree,  by 
supplementary  proceedings,  by  execution,  by  scire 
facias,  by  attachment,  by  sequestration,  or  by  ap- 
pointing a  receiver,  or  by  charging  it  on  the  land,  or 
by  proceedings  for  contempt. 

As  a  general  rule,  alimony  cannot  be  enforced 
after  the  death  of  either  party. 

After  the  suit  has  been  begun  the  wife  may 
present  a  petition  or  affidavit  alleging  that  the  hus- 
band is  about  to  leave  the  jurisdiction,  and  upon 
this  the  court  may  issue  a  ne  exeat  republica,  which 
will  not  be  discharged  until  he  gives  security. 

She  may  likewise  obtain  an  injunction  prevent- 
ing the  husband  from  alienating  or  charging  his 
property.  Courts  have  also  charged  it  on  the  hus- 
band's land,  appointed  a  receiver,  assigned  certain 
property  in  trust  for  the  wife,  and  ordered  the  hus- 
band to  give  security  for  payment. 

Permanent  alimony  ceases  generally  upon  the 

405 


WOMAN  UNDER  THE  LAW 

death  of  either  party,  or  after  reconciUation  or  by 
statute  upon  the  re-marriage  of  the  wife ;  and  if  the 
alimony  was  granted  with  a  divorce  a  mensa  et 
thoro,  when  they  become  divorced  absolutely. 

By  statutes  in  many  of  the  states,  not  other- 
wise, the  court  has  the  discretion  to  aw^ard  specific 
property  in  place  of  alimony  proper,  thus  dividing 
the  property  between  the  husband  and  the  w^ife. 
In  so  doing  they  proceed  upon  the  same  principles 
that  govern  the  award  of  alimony. 

Other  statutes  provide  for  the  restoration  of 
the  wife's  property  upon  divorce,  yet  if  the  husband 
has  settled  property  on  the  wife,  the  court  may  not 
grant  the  divorce  unless  she  will  execute  a  recon- 
veyance of  the  property. 

The  wife's  means  are  what  she  has  or  owns; 
the  nature  or  source  are  immaterial;  it  may  be  her 
separate  property  or  earnings,  or  she  may  be  sup- 
ported by  her  father,  other  relatives,  or  second  hus- 
band. The  general  rule  is  that  if  the  wife  has 
sufficient  means  to  support  herself  in  the  rank  of  life 
to  which  she  belongs,  no  alimony,  temporary  or  per- 
manent will  be  awarded  her. 

The  husband's  faculties  are  what  he  has  or 
can  acquire  by  labor,  mental  or  physical.  From  this 
his  debts  must  be  deducted,  and  if  then  the  husband 
cannot  support  his  w^ife,  no  alimony,  temporary  or 
permanent  will  be  decreed  against  him.  If  he  is 
complainant,  however,  and  cannot  give  the  wife 
alimony  pendente  lite  the  court  will  not  permit  him 
to  proceed  until  he  has  made  some  provision  for 
her. 

THE  END. 


406 


GLOSSARY 
A 

A  fortiori: 

By  so  much  the  stronger;  all  the  more. 
Ab  initio: 

From  the  beginning. 
Actio  personalis  moritur  cum  persona: 

A  personal  action  dies  with  the  person. 
Ad  litem: 

For  the  suit. 
A  mensa  et  thoro: 

Divorce  from  bed  and  board. 
Amicus  curiae: 

Friend  of  the  court;  a  stander  by,  not  being  a  party  to,  or 

interested  in  the  cause,  who  informs  the  court  of  any  decided 

case,    statute    or   other    fact,    of   which    it    can    take    judicial 

notice. 
A  vinculo  matrimonii: 

Divorce   from  the  bond  of  matrimony. 
Ante-nuptial: 

Before  marriage. 

C 

Cestui  que  trust: 

He  for  whose  benefit  another  person  is  seised  of  lands  and 
tenements,  or  is  possessed  of  personal  property. 

Scire  facias: 

The  name  of  a  writ  founded  on  some  public  record  (Lat. 
that  you  make  known). 

Contra  bonos  mores: 

Against  sound  morals. 

Chose  in  action: 

A  right  to  receive  or  recover  a  debt,  the  money,  the  dam- 
ages for  breach  of  contract;  or  for  a  tort  connected  with 
contract,  but  which  cannot  be  enforced  without  action. 

Consent  per  verba  de  future  cum  copula: 

Sexual  intercourse  in  fulfilment  of  an  agreement  to  marry. 

G  i 


WOMAN  UNDER  THE  LAW 
D 

Devastavit: 

The  mismanagement  and  waste  by  an  executor,  adminis- 
trator, or  other  trustee  of  the  estate  and  effects  trusted  to 
him  as  such  by  which  a  loss  occurs. 

De  facto: 

Actually;  in  fact;  indeed.  A  term  used  to  denote  a  thing 
actually  done. 

De  son  tort: 

Of  his  own  wrong.  This  term  is  usually  applied  to  a  person 
who,  having  no  right  to  meddle  with  the  affairs  or  estate 
of  a  deceased  person,  yet  undertakes  to  do  so,  by  acting  as 
executor  of  the  deceased. 

De  jure: 

Rightfully;  of  right;  lawfully;  by  legal  title.  Contrasted 
with  de  facto. 

Detinue: 

To  hold  from;  to  withhold.  A  form  of  action  which  lies 
for  the  recovery,  in  specie,  of  personal  chattels  from  one 
who  has  acquired  possession  of  them  lawfully  but  retains  it 
without  right,  together  with  damages  for  the  detention. 

Discovert: 

Not  covered;  un-married. 

Donatio  mortis  causa: 

A  gift  made  in  prospect  of  death. 

De  novo: 

(Lat.)  Anew;  afresh.  When  a  judgment  upon  an  issue  in 
part  is  reversed  on  error  for  some  mistake  made  by  the 
court  in  the  course  of  the  trial,  and  venire  de  novo  is 
awarded,  in  order  that  the  case  may  again  be  submitted  to  a 
jury. 

E 

Emblement: 

The  right  of  a  tenant  to  take  and  carry  away,  after  his 
tenancy  is  ended,  such  natural  products  of  the  land  as  have 
resulted  from  his  own  care  and  labor.  The  term  is  also 
applied  to  the  crops  themselves. 

Entirety : 

This  word  denotes  the  whole,  in  contra-distinction  to  moiety, 
which  denotes  the  half  part.  A  husband  and  wife,  when 
seised  of  land,  are  seised  by  entireties  and  not  as  joint 
tenants. 

G  11 


GLOSSARY 

Estoppel: 

The  preclusion  of  a  person  from  asserting  a  fact,  by  previous 
conduct  inconsistent  therewith,  on  his  own  part  or  the  part 
of  those  under  whom  he  claims,  or  by  an  adjudication  upon 
his  rights  which  he  cannot  be  allowed  to  call  in  question.  A 
plea  which  neither  admits  nor  denies  the  facts  alleged  by 
the  plaintiff,  but  denies  his  right  to  allege  them. 
Estovers: 

(Estouviers,  necessaries;  from  estofier,  to  furnish).  The 
right  or  privilege  which  a  tenant  has  to  furnish  himself  with 
so  much  wood  from  the  demised  premises  as  may  be 
sufficient  or  necessary  for  his  fuel,  fences,  and  other  agricul- 
tural operations. 


Facie  ecclesiae: 

In  face  of  the  church. 
Feme  covert: 

Married  woman. 
Feme  sole: 

A   single   woman,   including   those   who   have   been    married 

but  whose  marriage  has  been  dissolved  by  death  or  divorce, 

and  those  women  who  are  judicially   separated   from  their 

husbands. 
Fktione  juris: 

Judged  to   be   false. 
Flagrante  delicto: 

In  the  very  act  of  committing  the  crime. 


Garnishee : 

A  person  who  has  money  or  property  in  his  possession 
belonging  to  a  defendant,  which  money  or  property  has 
been  attached  in  his  hands,  with  notice  to  him  of  such  attach- 
ment; is  so-called  because  he  has  had  warning  or  notice  of 
the  attachment. 

H 

Habeas  corpus: 

(Lat.    that    you    have    the    body).      A   writ    directed    to    the 
person  detaining  another  and  commanding  him  to  produce 
the  body  of  the  prisoner  at  a  certain  time  and  place  with 
G  iii 


WOMAN  UNDER  THE  LAW 

the  cause  of  his  caption  and  detention,  to  do,  submit  to, 
and  receive  whatsoever  the  court  or  judge  awarding  the  writ 
shall  consider  in  that  behalf.  This  is  the  most  famous  writ 
in  the  law;  and  having  for  many  centuries  been  employed 
to  remove  illegal  restraint  on  personal  liberty,  no  matter  by 
what  power  imposed,  it  is  often  called  the  great  writ  of 
liberty. 


Ignorantia  legis  neminem  excusat: 

Ignorance  of  the  law  excuses  no  man. 

In  pais: 

This  phrase,  as  applied  to  a  legal  transaction,  primarily 
means  that  it  has  taken  place  without  legal  formalities  or 
proceedings.  Thus  a  widow  was  said  to  make  a  request  in 
pais  for  her  dower  when  she  simply  applied  to  the  heir 
without  issuing  a  writ;  so  conveyances  are  divided  into 
those  by  matter  of  record  and  those  by  matter  in  pais.  In 
some  cases,  however,  matters  in  pais  are  opposed  not  only 
to  matters  of  record,  but  also  to  matters  in  writing,  i.  e. 
deeds,  as  where  estoppel  in  deed  is  distinguished  from 
estoppel  in  pais. 

Inter  sese: 

Among  themselves. 

Inter  vivos: 

Between  living  persons;  as  a  gift  inter  vivos,  which  is  a 
gift  made  by  one  living  person  to  another.  It  is  a  rule  that 
a  fee  cannot  pass  by  grant  or  transfer  inter  vivos  without 
appropriate  words  of  inheritance. 

In  rem: 

(Lat.)  A  technical  term  used  to  designate  proceedings  or 
actions  instituted  against  the  thing,  in  contra-distinction  to 
personal  actions  which  are  said  to  be  in  personam. 

In  personam: 

(Lat.)  A  remedy  where  the  proceedings  are  against  the 
person,  in  contra-distinction  to  those  which  are  against 
specific  things,  or  in  rem. 


Jure  uxoris: 

By  right  of  a  wife. 
Jus  disponendi: 

(Lat.)     The  right  to  dispose  of  a  thing. 

G  iv 


GLOSSARY 
L 

Laches 

Unreasonable  delay;   neglect  to  do  a  thing,  or  to  seek  or 
enforce  a  right  at  a  proper  time. 
Locus  standi: 

A  right  to  be  heard.  A  right  of  appearance  in  a  court  of 
justice,  or  before  a  legislative  body  on  a  given  question. 

M 

Malum  in  se: 

Evil  in  itself;  a  crime  by  reason  of  its  inherent  character. 

Matrimonia  debent  esse  libera: 
Marriage  ought  to  be  free. 

N 

Ne  exeat  republica: 

A  high  prerogative  writ,  issuing  out  of  a  court  of  chancery 
to  prevent  a  defendant  debtor  from  going  away  and  evading 
the  jurisdiction. 

Nisi: 

Conditional. 

Non  compos  mentis: 

Not  of  sound  mind,  memory,  or  understanding.  A  generic 
term,  including  all  the  species  of  madness,  whether  it  arises 
from  idiocy,  sickness,  lunacy,  or  drunkenness. 

Nunc  pro  tunc: 

(Lat.  now  for  then).  A  phrase  used  to  express  that  a  thing 
is  done  at  one  time  which  ought  to  have  been  performed  at 
another. 


Pari  passu: 

(Lat.)    By  the  same  gradation.    Used  especially  of  creditors, 
who,  in  marshalling  assets,  are  entitled  to  receive  out  of  the 
same  fund  without  any  precedence  over  each  other. 
Particeps  criminis: 

A  partner  in  crime. 

Pendente  lite: 

(Lat.)  Pending  the  continuance  of  an  action;  while  liti- 
gation continues.  An  administrator  is  appointed  pendente 
lite  when  a  will  is  contested. 

G  V 


WOMAN  UNDER  THE  LAW 

Per  se: 

Taken  alone,  in  itself,  by  itself. 

Per  verba  de  praesenti: 

By  words  of  the  present;  a  promise. 

Post-nuptial: 

Something  which  takes  place  after  marriage;  as  a  post- 
nuptial settlement,  which  is  a  conveyance  made  generally  by 
the  husband  for  the  benefit  of  the  wife. 

Power: 

The  right,  ability  or  faculty  of  doing  something. 
The  distinction  between  "power"  and  "right,"  whatever  may 
be    its   value    in   ethics,   in   law   is   very    shadowy   and    un- 
substantial.    He  who  has  legal  power  to   do  anything  has 
the  legal  right. 

Technically  an  authority  by  which  one  person  enables 
another  to  do  some  act  for  him. 

Pro  tanto: 

(Lat.  for  so  much). 

Per  autre  vie: 

An  estate  for  the  life  of  another. 


Quia  timet: 

(Lat.  because  he  fears).     A  term  applied  to  preventive  or 


anticipatory   remedies. 


R 


Res: 

(Lat.  things).  The  terms  res,  bona,  biens,  used  by  jurists, 
who  have  written  in  the  Latin  and  French  languages,  are 
intended  to  include  movable  or  personal  property,  as  well 
as  immovable  and  real  property. 

Res  gestae: 

(Lat.)     Transaction;  thing  done;  the  subject  matter. 
Those    circumstances    which    are    the    automatic     and     un- 
designed incidents  of  a  particular  litigated  act,  and  which 
are  admissible  in  evidence  when  illustrative  of  such  act. 

Res  judicata: 

A  point  already  judicially  decided. 


Sub  mode: 

(Lat.)     Under  a  qualification.     A  legacy  may  be  given  sub 
modo,  that  is,  subject  to  a  condition  or  qualification. 

G  vi 


GLOSSARY 

Sui  juris: 

(Lat.  of  his  own  right).  Possessing  all  the  rights  to  which  a 
free  man  is  entitled;  not  being  under  the  power  of  another, 
as  a  slave,  a  minor,  and  the  like. 

Sui  generis: 

Of  its  own  kind  or  class. 

Civiliter  mortuus: 

In  a  state  of  civil  death.  In  New  York  one  sentenced  to  life 
imprisonment  in   State   Prison  is  civiliter  mortuus. 

Seisin : 

The    completion    of   the    feudal    investiture,    by    which    the 

tenant  was  admitted  into  the  feud,  and  performed  rights  of 

homage  and  fealty. 

Seisin  in  fact  is  possible  with  intent  on  the  part  of  him  who 

holds  it  to  claim  a  freehold  interest. 

Seisin  in  law  is  a  right  of  immediate  possession,  according 

to  the  nature  of  the  estate. 

Statute  of  limitations: 

In  1623  by  sta.  21  Jac.  1.  c.  16,  entitled.  "An  Act  for  Limit- 
ation of  Actions,  and  for  avoiding  of  Suits  in  Law,"  known 
and  celebrated  ever  since  as  the  Statute  of  Limitations,  the 
law  upon  this  subject  was  comprehensively  declared  sub- 
stantially as  it  exists  at  the  present  day  in  England,  whence 
our  ancestors  brought  it  with  them  to  this  country;  and  it 
has  passed,  with  some  modifications,  into  the  statute-books 
of  every  state  in  the  Union  except  Louisiana,  whose  laws  of 
limitation  are  essentially  the  prescriptions  of  the  civil  law, 
drawn  from  the  Partidas,  or  Spanish  Code. 

U 

Ultra  vires: 

The  modern  technical  designation,  in  the  law  of  corpora- 
tions, of  acts  beyond  the  scope  of  their  powers,  as  defined  by 
their  charters  or  acts  of  incorporation. 

User: 

The  enjoyment  of  a  thing. 

Usufruct : 

(In  civil  law).  The  right  of  enjoying  a  thing,  the  property 
of  which  is  vested  in  another,  and  to  draw  from  the  same 
all  the  profit,  utility,  and  advantage  which  it  may  produce, 
provided  it  be  without  altering  the  substance  of  the  thing. 

G  vii 


WOMAN  UNDER  THE  LAW 
V 

Vel  non: 

He  dies  intestate  who  either  has  made  no  will,  or  who  has 
not  made  one  legally,  or  whose  will  has  been  annulled  or  of 
whom  there  is  no  living  heir. 


G  viii 


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